Naturally, the first notions that need elucidation are those of viability and the edge of viability. Later a notion of sanctity of human life will be added. We will now discuss each of them in turn and several other ones as well.
Literally, the notion of viability
is related to the major capabilities of existence and development. Hence, when viability is attributed to a state of a fetus, what is literally asserted is that the fetus is capable of living and growing in the normal way.
However, the notion of viability when applied to a state of a fetus has gained a different sense. Roughly speaking, it refers to the capability to live outside the mother’s womb. When applied to a state of a neonate, viability means, again roughly speaking, the capability to live, with no commitment to the quality of the expected life or development of the neonate.
The notion of capability to live, as applied to a fetus or a neonate, has to be understood as having the sense of capability to live, albeit with help, even if it is help crucial for staying alive.
A question arises as to whether viability means capability to live for any period of time, or rather capability to live for a long period of time. As the notion of viability is usually used with respect to a fetus or a neonate, it seems that capability to live, for a rather long period of time, is meant.
Again, one may ask what exactly is meant by a long period of time. It seems advisable to respond by introducing two notions of viability: First, there should be a notion of ordinary viability, which means capability to live, when there are no grounds for predicting a life expectancy of less than average. Secondly, there should be a parametric notion of t-viability, where t is a certain period of time (months, years, decades). The t-viability notion will be usable when there are grounds for predicting life expectancy in terms of t. Accordingly, arguments concerning the fate of a fetus or a neonate that are commonly phrased in terms of viability should be rephrased in terms of either ordinary viability or t-viability. We will use the former notion of viability unless usage of the latter is specified.
If we combine the observations that have just been made, then we get the following elucidation of the notion of viability that will serve us subsequently. An attribution of viability to a fetus or a neonate is an attribution of a present capability to live outside the womb, for a long period of time, albeit with some crucial external help. The length of the time involved varies.
So far, we have considered attributions of viability as if it is a matter of certainty: as if there is a “yes” or “no” answer to the question as to whether a certain neonate, under certain conditions, is viable or not. When we have a highly corroborated theory, on grounds of which it is possible to make highly accurate predictions, our answers to such particular viability questions can reach a level of near certainty. In practice, probabilities of viability play a role in decision-making procedures. The common extent of uncertainty does not, however, change the definition or elucidation of viability.
Edge of Viability
Given such notions of viability
, certain general claims can be made about a neonate. For example, it can be claimed that under present medical conditions, a healthy neonate is ordinarily viable if it is born after 25 weeks’ gestation. General claims of that form can rest on grounds of viability statistics or of embryological theory. Since both data and theory are grounds for different viability claims, the natural question arises as to the minimal gestational age of neonates for which it is claimed that if a healthy neonate is of that age or older, then it is viable. Thus, for a given body of knowledge that includes both viability statistics and corroborated theories, the edge of viability is definable. It is the minimal age for which it can be claimed, on the grounds of that body of knowledge, that if a neonate is of that gestational age or older, then it is viable.
Strictly speaking, what has so far been defined as the edge of viability is the edge of viability, relative to a body of knowledge. Such a body of knowledge includes not only statistics and theories (“knowledge that”), but also methods of medical treatment intended to save life and enhance viability (“knowledge how”). Evidently, since both our “knowledge that” and our “knowledge how” never cease growing, the related edge of viability keeps moving. Claims that the edge of viability is 22 weeks are either already correct or will sooner or later become correct.
Viability and Edge of Viability
At this point, we would like to point out the nature of these two notions. Attribution of viability or of being at the edge of viability to a certain neonate is a function of three types of knowledge:
Firstly, particular “knowledge that,” which is a specification of the medical conditions of the neonate under consideration. Secondly, general “knowledge that,” which is statistical knowledge or theoretical knowledge pertaining to neonates under the same or similar conditions. Thirdly, “knowledge how,” which is the medical and technological means available for treating that neonate.
Thus, there is no room for any societal decision as to what viability is or what should be considered as the edge of viability. Clearly, specification of medical conditions, statistical data, and scientific theories is outside the confines of societal deliberations and decision-making procedures. Availability of medical and technological means of treatment might seem different, since societal decisions can be made as to whether some means are to be put at the disposal of medical staff for treatment of neonates at the edge of viability or neonates in general. However, such understanding of availability would be misguided. Attribution of viability or being at the edge of viability depends on the facts with respect to the relevant family of methods of treatment, medications, pieces of equipment, etc., in general, and not to any section of it that has been designated by some societal decision of whatever nature. Problems of expenditure give rise to societal deliberations and decisions, but the sharp distinction between matters of fact and matters of societal undertaking of expenses should not be blurred.
We move now to a brief elucidation of a notion of person
, which is going to play a major role in our consideration. We are going to elucidate a
notion of person
rather than the
notion of person
. As a matter of fact there is a common usage of the term person
neither in daily parlance nor in philosophical literature.
It has often been claimed that the English term person was derived from the Latin term persona, which meant a mask as used by an actor in a performance. Hence, to use the term person in some context of utterance is to ascribe a certain role within that context. Thus, for example, in a legal context, to describe someone (a man or a woman) or something (a company or a state) as a (legal) person is to ascribe the legal role of having a cluster of legal attributes, such as duties and rights.
Since we are presently interested in moral and ethical considerations, we are going to elucidate a notion of person that is used to ascribe a moral or an ethical role. The difference between a moral context and an ethical one will be explained below. For the present purpose, suffice it to make three assumptions about these contexts:
Firstly, both of them involve normative considerations, namely ones that involve considerations of what is the case but also and mainly of what ought to be the case. Secondly, both of them involve principles and arrangements that can justify claims as to what ought to be the case, under certain circumstances. Thirdly, in both of them the role played by a (moral) person or an (ethical) person is that of a focus of rights and duties that rest on certain normative principles and arrangements.
On the background of these assumptions, it makes sense to ask who is a person, or, in other words, what are necessary or sufficient conditions for being a person, in a moral or an ethical context.
Philosophical literature provides us with various answers. Here is one list of personhood elements, where reproduction issues are under consideration. The list included: minimum intelligence, self-awareness, self-control, a sense of time, a sense of futurity, a sense of the past, a capability of relating to others, concern for others, communication, control of existence, curiosity, change and changeability, balance of rationality and feeling, idiosyncrasy, and neocortical functioning.
A list often looks arbitrary. Delineation on grounds of a seemingly arbitrary list seems invalid. Our delineation of persons, in a moral or an ethical context, will, therefore, rest on a method of delineation that can be justified as such.
In answering the question, who is a person, in a moral or an ethical context, we proceed along the following line of argument: Firstly, we specify some ingredients of moral and ethical contexts. Secondly, we point out some necessary or sufficient conditions for being able to play a role in a context that has those ingredients. Thirdly, we draw distinctions between conditions that obtain in a full-fledged manner and those that obtain to a lesser extent. Among the latter we draw a distinction between those that are sufficiently similar to the former ones and those that are not. Fourthly, on the grounds of those distinctions we suggest an approximate answer to the question who is a person, in a moral or an ethical context.
We turn now to a brief presentation of these four steps.
Moral and ethical contexts manifest several distinct features. First of all, they involve values and norms, that is to say, claims or arguments related to what is desirable, from some perspective, or what ought to be the case, from some point of view. Then, moral and ethical contexts involve societal arrangements that embody certain values and norms. Finally, such arrangements determine certain distributions of rights and duties that bind their participants.
In the second step of our method, we look for necessary or sufficient conditions for being a participant in those moral or ethical arrangements, which embody values and norms, distribute rights and duties, and are binding. Presently we will confine ourselves to a brief presentation of a few examples. A necessary condition for being a party to a binding arrangement, such as a contract, is the cognitive condition of having a temporal self-identity. That is to say, one’s view of oneself is that of a temporal being of a nature that enables one to identify one’s present stage with some of one’s future stages and both as stages of the same being. Another necessary condition for being a participant in an arrangement that embodies values is the mental condition of having some relatively fixed desires that regulate one’s behavior to a significant extent. Yet another necessary condition for being a participant in an arrangement that distributes rights that are justifications of claims is the cognitive condition of having the abilities to justify a claim, to identify interests, and to remember states of affairs that give rise to claims and their justifications. Similar examples abound.
Usually, healthy adult human beings seem to have all those necessary abilities. Hence, as a second approximate delineation of persons, in a moral or an ethical context, we have the class of those beings that have all those necessary abilities. This class includes all healthy adult human beings.
When we look at some of these abilities, such as the ability to identify certain families of states or the ability to justify certain statements, it becomes clear that a significant distinction should be drawn between different states of ability. On the one hand, we have ability in its most mature form, while on the other hand we have the same ability at an earlier stage of its development, before it becomes mature. Children are our prime examples of human beings who do not have all those necessary abilities, but nevertheless are considered to be parties to the societal arrangements involved in moral and ethical contexts. They are often parties who are different in their distribution of rights and duties, for example, but parties to those arrangements they seem to be all right. Notice, furthermore, that children as well as adults sometimes lack some ability without thereby being put outside the confines of the class of persons, in moral and ethical contexts.
Accordingly, we have now as the third approximate delineation of persons, in moral and ethical contexts, the class of those beings that have all, or almost all, necessary abilities, whether in a mature form or in a well-developed but not yet mature form. This class includes human adults and children, though not all of them.
Finally, we draw a distinction between two developmental stages of ability. To grasp the leading idea underlying the distinction we are going to introduce, consider some ability that involves both a rich genetic endowment as well as a significant process of maturation. Linguistic ability is, indeed, a prime example. Consider, furthermore, the developmental stage of that ability upon birth. The genetic infrastructure of the ability is well developed, to an extent that enables the neonate to start undergoing a process of growth, development, and maturation. The distinction we now introduce is between a developmental stage in which we have a well-developed infrastructure of some ability and a developmental stage of that ability in which the infrastructure is not yet well developed.
Now, our philosophical claim is that during a developmental stage in which the infrastructure of an ability is well developed, a significant part of that ability is already extant. Put differently, during such a developmental stage the ability is already extant, though in a significantly non-mature form.
Most interesting are the “edge” states, the first ones during which the infrastructure is already well developed. The most conspicuous example of our distinction is seen when those “edge” states are compared to the immediately preceding ones. Our empirical assumptions are two: First, that the infrastructures of the above-mentioned necessary abilities reside in the cortex, and, secondly, that the cortex is well developed from the 30th week of gestation and on. If a safety zone is added for accommodating individual differences, we reach the 26th week of gestation as the lower edge of the developmental stages during which the necessary abilities are presumably already extant.
We have now reached the fourth and presently final approximate delineation of persons, in a moral or an ethical context. From a conceptual point of view, what we have as the class of persons, in those contexts, the class of those beings that have all, or almost all, necessary abilities in one of the three following forms: 1) In a mature form; 2) in a well-developed but not yet mature form; and 3) in the form of a well-developed infrastructure of the ability. From an empirical point of view, this means that presumably every adult, child, baby, neonate, and fetus during the third trimester of gestation are persons, in a moral or an ethical context.
Sanctity of Human Life
Several conceptions govern prevalent attitudes towards the life of a human being, be it a fetus or an adult, and since they are significantly different from each other, we briefly clarify them.
The most entrenched form of adherence to a conception of the sanctity of life is found in the religious tradition of Jainism, which includes respect to all forms of life and a related strict insistence on non-violence. The sanctity of human life is, then, an interesting consequence of a general principle of sanctity of life.
Another conception of sanctity of life is confined to “higher” forms of life, including human life as a prime example. One feature that “higher” forms of life share with each other is sentience. A conception of the sanctity of “higher” forms of life rests on an ascription of “intrinsic value” to what manifests high intricacy of structure and functioning. Such forms of life are “good” as such. Human life is “good” in the same sense. Moreover, what is intrinsically “good” should be well protected. Such an attitude of sanctity of human life serves as both a manifestation of the view of the intrinsic value of human life as well as an instrument of protection of human life.
A narrower conception of sanctity of “higher” forms of life applies to those that manifest, for example, both sentience and rationality. Although such conceptions are not proposed and defended as conceptions of the sanctity of human life, since their notion of “higher” forms of life applies in our era and environment only to human beings, they serve as “edge” conceptions of the sanctity of human life. All other conception will be, in some sense, narrower than that one.
One such conception is found in the tradition of the Jewish religion. Within such a tradition, any conception of “sanctity” applies in a primary sense only to the deity. Every attribution of “sanctity” to human life is, therefore, derivative or even undesirable. However, on the background of some conception of the relationships between the deity and human beings, human life is extremely precious, on the one hand, but is not absolutely protected, on the other hand. According to an ancient Jewish norm, if a Jew is threatened with death unless he commits idolatry, bloodshed, or adultery, then he should be willing to be killed rather than commit such activities. On any other occasion, protection of human life “overrides everything,” every other norm of religious validity. Strictly speaking, this is a conception of the “preciousness,” rather than “sanctity,” of human life, in a somewhat restricted sense.
Finally, we have a “preciousness” conception of human life that does not rest on any view of the intrinsic value of human life or of a divinely endowed value of human life. This conception rests on the simple observation that being alive is a precondition for being a participant in societal arrangements that embody values and norms and distribute rights and duties. (To be sure, it is not meaningless to speak, for example, about the rights of the deceased, but such figures of speech are not paradigmatic.)
According to this conception, protection of human life is protection of what is a necessary element of any valuable societal arrangement. No wonder that from a democratic point of view, the life of the citizen is of uppermost importance. In a sense, this is a “necessary precondition” conception of human life. In the following, we will argue on the grounds of such a conception, which fits every democratic setting.
Protection of human life is one dimension of protection of human dignity. Whereas we clearly have a working understanding of human life and its protection, it seems to be advisable to elucidate some notion of human dignity
and its protection.
A conception of human dignity involves, first of all, a sharp distinction between human beings and objects. Accordingly, protection of human dignity requires practical adherence to that basic distinction by means of clear and regular manifestations of commitment to practices that do not treat human beings on a par with objects, such as stones, cars, computers, and robots, as well as non-human sentient beings.
Secondly, every conception of human dignity allows drawing distinctions between different human beings and even expressing them in our practices. We all treat our loved ones in ways that are very significantly different from the ways we treat all the rest. Our states treat citizens and non-citizens quite differently. However, a moral conception of human dignity sets a practical threshold of respect to be paid to every human being as such.
Thirdly, a moral conception of human dignity puts respect for human autonomy at the center of respect for human beings. To respect a human being is practically, first and foremost, to enable that human being to create, maintain, and nurture a form of life in which one manifests one’s values and taste, beliefs and desires. No wonder, then, that a democracy, which embodies in its form of regime a moral conception of human dignity, has a constitutional bill of rights that protects the autonomy of every citizen in one’s most fundamental spheres of life.
We have outlined a conception of what has been described as human dignity and its protection. Actually this is a conception of the dignity of a person (in a moral or an ethical context) and its protection. The elements that have been mentioned apply not only to an adult human being but also to a fetus during the third trimester of gestation.
The Slope of Dignity Protection
Protection of an area can be done at its gates and borders, without anything being done outside its confines. However, effective protection involves protection both of the area itself and some of its adjacent areas. Protection of the area itself will be of a different nature from that of an adjacent area. Whereas attempts to eliminate any hostile activity within the area itself is constitutive of the very idea of protection of the area, attempts to eliminate or at least weaken hostilities in adjacent areas is an auxiliary method, meant to face a potential danger before it turns into an actual one.
The nature of essential protection is, then, different from that of auxiliary protection, but both kinds are required in a practical system of effective protection.
A major ingredient of auxiliary protection of the dignity of persons, in a moral or an ethical context, is the conception of the slope of dignity protection. Imagine a slope: At the top end of it we have a person, whose dignity is protected. The dignity and its protection are full-fledged. At the bottom end of the slope we have objects that are not the subject matter of any claim for dignity and its protection. A slope is extended from the bottom end to the top end. The higher up something is on the slope, the more dignity it deserves and the more extensive should be its protection. A fertilized egg is above an unfertilized egg, on the slope, but under a blastocyst. A fetus is above an embryo, on that slope, because it is closer in its structure and functioning to a person than an embryo. Protection of the dignity of a fetus is stronger than that of an embryo, in the sense that stronger arguments are required for justifying, say, an abortion of a fetus than an abortion of an embryo.
We will call our duties to protect the life and dignity of a person primary ones and the duties to protect the life or dignity of what is on the slope of dignity but not a person secondary ones.
A similar slope of dignity protection is involved in human attitudes towards cadavers, bones, and graves. At the top end of the slope, one step removed from the living person, we have the corpse of a person who has just died. At the bottom end we have, say, a grain of sand on a beach. A grave is above that grain of sand, on the slope. A cadaver is above a grave, on that slope, because it is closer to the person in the causal chain of states after death.
Mastering practices of paying gradual respect along those slopes of dignity protection is, therefore, a precondition of successful maintenance of any effective practice of paying respect to persons, who are at the top ends of those slopes.
Morality and Ethics
Finally, we have to draw a distinction between moral
contexts. During the history of philosophy, theology, law, and other adjacent areas, those notions have often been used interchangeably. We would, however, like to draw a distinction between two perspectives, using the terms moral
When we witness an interaction between two human beings, we can depict it in different ways. First of all, it can be depicted as an interaction between two persons. Our descriptions of them will be confined to the fact that each of them is a person. However, under ordinary circumstances, the same interaction is amenable to a variety of richer descriptions, e.g. between a parent and a son, a physician and a patient, a social worker and a patient’s relative, to mention just a few examples. Such a description of the same interaction between two persons brings into the picture roles (parent, son, patient) and professions (physician, social worker), among other positions. To bring into the picture a profession, for example, is to bring into it values and norms that regulate proper activity within that profession. An interaction between a person who is of a certain profession and another person can, then, be analyzed and evaluated from the point of view of those values and norms of the profession. The same holds for other positions.
The distinction one should be aware of is that between such different points of view. On the one hand, we have what we will call the moral point of view, which evaluates interactions between persons qua persons. Principles of human dignity protection reflect the moral point of view. On the other hand, we have what we will call an ethical point of view, which evaluates interactions between persons of certain roles, such as professions. A conception of parental duties, a Code of Medical Ethics and Rules of Conduct for a Company Director reflect ethical points of view.