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Special Section: The Morality of Abortion The Problem of Coerced Abortion in China and Related Ethical Issues JING-BAO NIE Since the early 1970s, despite popular opposition, to control the rapid growth of population the Chinese government has been carrying out the strictest and most comprehensive family planning policy in the world. In addition to con- traceptive methods and sterilization, artificial abortion Ðboth surgical and nonsurgical Ðhas been used as an important measure of birth control under the policy. Many women have been required, persuaded, and even forced by the authorities to abort fetuses no matter how much they want to give birth. For centuries artificial abortion has been practiced in China by and large as a private issue. Direct and indirect sources indicate that abortion has been no less frequently induced in traditional China than in other places of the world. Whether or not abortion was regarded as morally acceptable by ancient Chi- nese medical doctors, philosophers, and common people, the state did not directly interfere and take any official position in prohibiting, permitting, or encouraging the practice until the middle of this century. The founding of the People’s Republic of China changed this situation thoroughly and profoundly. In her social history of birth control in the United States, Linda Gordon points out that ªbirth control has always been primarily an issue of politics, not of technology.º 1Such is especially the case with respect to fertility control and abortion in China since 1949, as every aspect of the life of the Chinese people has had strong political and ideological coloring. In the years 1949 ±1976 Mao Zedong dominated, controlled, and directed Chinese society, from the political operation of the nation to the lifestyle of the common people. In attempting to understand the abortion issue in China one cannot ignore Mao’s ideas on population and fertility control. Until the late 1950s and early 1960s, Mao, born in a rural village in southern China, completely denied that a huge population is a social catastrophe. Rather, he stressed that the more people, the greater the energy for socialist revolution and construction. As a result, importation of contraceptives was banned and abortion was basically prohibited. But after some hesitations and reversals Mao changed his attitude toward birth control. In the 1970s the party and govern- ment started to work out policies to reduce the rate of increase of the popula- tion. Mao’s successor not only continued the birth control policy but enforced it. In 1980 the Central Committee of the Chinese Communist Party and the government announced officially the famous (infamous) ªone child per coupleº policy with very few exceptions. The ambitious program that would maintain the population at no higher than 1.2 billion by the year 2000 had been formu- lated and promoted. Thus persuaded or coerced abortion has become an often- used fertility control method. Cambridge Quarterly of Healthcare Ethics(1999),8, 463 ±479. Printed in the USA. Copyright 1999 Cambridge University Press 0963-1801/99 $12.50 463 It seems that most couples in contemporary China, like many couples else- where, wish to have two or more children (ideally, one boy and one girl). Therefore, since the beginning, the family planning program, especially the one-child-per-couple policy, has met with strong popular opposition. Women who definitely want more than one child often intentionally try to violate the one-child policy, making every effort to hide their pregnancies in the hope of finally giving birth. When they eventually give up under various kinds of social and political pressure, their pregnancies have often progressed into the second or third trimester. As a result, most persuaded or coerced abortions are also late abortions. So, among others, two closely related moral questions are involved in the thorny issue of coerced abortion: (1) Can late abortion be justified ethically? and (2) Why and how is forced abortion morally acceptable or unacceptable? Some Chinese scholars have attempted to address the first question. 2In this paper I will focus on the second Ðthe problem of coerced abortion and related ethical issues. The political, economic, cultural, historical, and moral factors related to the practice of coerced abortion in China are so complex that even the problem of coercion cannot be properly and fully discussed in a short paper. In the fol- lowing discussion, I will begin by confirming the existence of forced abortion in China. Then, through the analysis of the concept of coercion, I will point out that coercion itself is not always morally wrong. To demonstrate why coerced abortion is morally objectionable, I will use not only the concepts of individual rights Ðthe right to reproduce and privacy Ðbut also the traditional Confucian- ist and Taoist moral ideals, i.e., governing by education rather than by exten- sive employment of compulsion and by letting people govern themselves. Finally, turning to the conflict between the serious problem of overpopulation and the popular will of people to have two or more children, I will try to show that coerced abortion may be a moral tragedy or a genuine ethical dilemma rather than a thorough moral evil as it first appears. The Practice of Coerced Abortion in China The Chinese government never explicitly legitimated coerced abortion. Induced abortion is called a ªremedial measure.º This term is not only the standard Chinese euphemism for abortion, especially for late-term abortions, but also partly true because, rather than abortion, the preferred means of birth control and family planning are postponing marriage and childbearing until a mature age, use of intrauterine devices (IUD) and other contraceptive methods, and surgical sterilization. Official and semi-official documents always proclaim that the family planning program is carried out ªunder the principle of voluntaries on the part of the masses with state guidanceº and that couples of childbearing age adopt fertility control methods, including abortion, entirely voluntarily or through persuasion but not through coercion. The government insists that the basic means of promoting the family planning program are information, edu- cation, and motivation, not ªcoercion and commandism,º which refer to force- ful orders and physical force. However, to many people the statement that the birth control campaign is based on voluntary choice or persuasion is either another lie put out by the communist government, or at least should be assessed with great caution. In his comprehensive study on Chinese family planning policy,Slaughter of the Inno- Jing-Bao Nie 464 cents, John Aird has reviewed the historical development of fertility control in the People’s Republic of China, especially in the 1980s. He concludes his monograph: The Chinese family planning program is being carried out against the popular will by means of a variety of coercive measures. Despite official denials and intermittent efforts to discourage some of the more extreme manifestations, since the early 1970’s if not before, coercion has been an integral part of the program. 3 InChina’s Changing Population, Judith Banister summarizes that the Chinese policy ªmakes extensive use of compulsory family planning, compulsory lim- itation of the total number of children to one child, required signing of double contracts and pledges to stop at one child, forced sterilization, compulsory IUD acceptance, forced IUD retention, and forced abortion.º 4 It has been estimated that from 1971 to 1983 the total number of artificial abortions in China was 92 million. 5According to a 1982 report by Guangdong family planning authorities, 80 percent of the 624,000 abortions in the province were performed ªby order,º and one-third were in the sixth month of preg- nancy or later. 6These data cannot be taken to be representative before more supportive statistical documents come out. A more recent number is not avail- able, but more recent figures must be no lower because the national population control policy has grown stricter and sexuality freer in the past decade. To know how many abortions are voluntary and how many are compulsory is difficult, if not completely impossible, since the authorities concerned always deny the use of coercion. Many cases of forced abortion do not necessarily indicate a coercive abortion policy, just as the many cases of ªpeople’s policemenº beating people in China do not necessarily mean that the government has a policy legitimating physical abuse by police. Does a central and provincial policy exist that explicitly legit- imates coerced abortion in China? The Chinese government and some support- ers of the birth control policy contend that mandatory IUD insertions, compulsory sterilizations, and coerced abortion originate not in central policy but in local deviations from central policies. Unfortunately, this argument can hardly hold water. When ªreal action,º ªeffective measures,º and ªpractical resultsº are empha- sized by the central policymakers in order to carry out the family planning program ªstrictly,º ªfirmly,º ªresolutely,º and ªeffectivelyº local cadres, in direct confrontation with the strong will of many people to have more than one child, must choose between using coercion and losing their positions. Some articles in the Chinese media have even openly advocated coercion. In 1979 Guangdong province ordered local officials: At present, we must shift our work emphasis to women who are pregnant, particularly to women who have more than one child…. We must mobilize those who have unplanned pregnancies [i.e., with- out permission from the authorities concerned] to adopt effective reme- dial measures to solve the problem. All units and departments must go into immediate action and do well in mobilization, persuasion, and education work. 7 A municipality in Liaoning was praised as a model for its 1982 performance because ªwomen with unplanned pregnancies were subjected to remedial oper- The Problem of Coerced Abortion in China 465 ation . . . and no time limit was set on the pregnancies.º In 1983 the national leadership ordered that ªwomen with unplanned pregnancies must adopt reme- dial measures as soon as possible.º 8A 1991 official regulation in Shannxi concerning family planning includes the stipulations that ªpregnancy must be terminated if it has not been plannedº (i.e., permission has not been obtained from the authorities) and ªmust also be terminated if the woman has not reached the legal age to marry or is pregnant outside marriage.º 9 In sum, as Aird has said, coercion is a ªdirect, inevitable, and intentional consequenceº of policies formulated by the central government. 10 The central and provincial policies have permitted and assured, at least indirectly, that local cadres can and sometimes must use coercion in their work. In Banister ‘s words, ªalthough the problem is seen at the grassroots level, its roots lie with the upper level.º 11 The Chinese family planning program remains highly coer- cive through the whole process; central policies have brought out many forced abortions and other coercive activities in the birth control campaign. As Aird has documented, many tactics and concrete methods are employed to persuade or compel people to submit to family planning demands against their will, including the following: · officials go repeatedly to the houses of women with unplanned pregnan- cies to have ªheart-to-heart talksº with the family; · women pregnant without permission are required to attend ªstudy classes;º · the government initiates the mass ªmovementº or ªmobilizationsº for con- traception, sterilization, and abortion; · penalties for resisting policies include measures that threaten family sub- sistence such as loss of employment for urban residents or removing the houses of rural people; · collective punishments and rewards are designed to involve the entire membership of a factory, or an institution, or a rural political unit so that peers will participate in persuading and compelling the women with unauthorized pregnancies to follow the central government policies. Persuasion is involved in some of the above measures (for instance, ªheart-to- heart talksº and ªstudy classesº), but local cadres often cross the line between persuasion and coercion. 12 It must be remembered here that the Chinese gov- ernment exercises almost unlimited power in the lives of citizens. Coercion Itself Is Not Necessarily a Moral Evil A great difficulty in discussing the ethical issues of coerced abortion lies in the definitions of the terms ªcoercionº or ªcompulsionº and the related concept ªpersuasion.º To draw a clear line between persuasion and coercion is even more difficult in practice than in theory. The Chinese government and some family planning advocates limit the term ªcoercionº to the use of physical force. Although physical force is sometimes used by local officials, the Chinese government never openly approves and formally legitimizes such action in any official published directive. Understanding coercion in this narrow sense, Chi- nese policymakers are able to openly deny the existence of coercion in the family planning program. Jing-Bao Nie 466 For many people, this definition is obviously too narrow. For Aird, a method powerful enough to compel many people to act contrary to their wishes con- stitutes force or coercion. He states, ªAny action in the fertility control to employ force, the threat of force, or extreme penalties and pressure that leave people no choice but to comply should be defined as coercion.º 13Although this definition does grasp the core meaning of the termcoercionas ordinarily used, it has not distinguished the strategies of persuasion and strong persuasion from the category of coercion or compulsion. Merriam-Webster’s Collegiate Dictionary(10th ed.) defines the wordcoerceas ªto restrain or dominate by force,º ªto compel to an act or choice,º ªto bring about by force or threat.º The wordpersuadeis defined as ªto move by argu- ment, entreaty, or expostulation to a belief, position, or course of action.º Although these dictionary definitions are of little help for moral exploration of coercive activities in Chinese birth control and abortion policies, they are a good starting point. Following the essay ªCoercionº by Robert Nozick and the article ªCoercion and Freedomº by Bernard Gert, bioethicists Tom Beauchamp and James Chil- dress claim that coercion ªoccurs if, and only if, one person intentionally uses a credible and severe threat of harm or force to control another.º 14 They point out further, ªFor a threat to be credible, both parties must believe that the person making the threat can effect it, or the one making the threat must successfully deceive the person threatened into so believing.º 15 For them, there is a distinctive line between coercion and persuasion since, as they define persuasion ªa person must be convinced to believe in something through the merit of reasons advanced by another person.º Thus they do not agree that such measures as ªforceful persuasionº exist. 16 Two points here require attention. First, coercion or compulsion is never absolute, nor essentially value free. Some may think that a decision concerning whether a person is coerced is a fact claim, just an empirical question. But to others, as Alan Wertheimer has argued, ªcoercion claims are moralizedº and ªthey involve moral judgments at their core.º 17 As a matter of fact, different people may respond very differently to the same pressure, threat, or force, not to mention that different cultures have different understandings of and atti- tudes about coercion. Second, and more important, coercion in itself is not necessarily morally unacceptable. For Aird, as the title of his book has clearly shown, coercive birth control in China is ªslaughter of the innocents.º China’s use of coercion in family planning violates human rights. He suggests that the Chinese family planning program is morally evil because it is highly coercive. This interpre- tation seems to be the first response of many Westerners to the practice of coerced abortion in China. Yet coercion itself is not always morally wrong at all. Beauchamp and Childress give two typical examples of coercion: the threat of force or punishment used by police, courts, and hospitals in acts of involuntary commitment for psychiatric treatment, and society’s use of compulsory vacci- nation laws. 18 However, they do not thereby mean to claim that involuntary civil commitment and compulsory vaccination are morally unacceptable just because coercion is adopted. Not only is coercion not always morally wrong, it may even be morally required under some circumstances that certain people or institutions control others by coercive or other manipulative means. Red B. Edwards and Edmund The Problem of Coerced Abortion in China 467 L. Erde point out that valid moral justifications exist for using coercion, such as parental coercion of children at times; good laws and penalties for noncompli- ance; and proper enforcement mechanisms like the police, the courts, and the prisons to coerce lawless persons into behaving themselves. Edwards and Erde conclude, ªUsing coercion is often, but not always, the morally right thing to do. Other human values besides freedom must be protected coercively.º 19 This fact may be rather sad and unfortunate to acknowledge since modern Western moral and legal traditions are typically based on personal autonomy (self- determination) or, in Wertheimer ‘s term, the voluntariness principle. 20 The cru- cial question is not whether coercion can be morally justified, but, as Wertheimer poses, ªWhat constitutes the coercion or duress that violates the voluntariness principle?º 21and, as Edwards and Erde ask, ªWhen is coercion morally unaccept- able? And how can we tell when it places morally unjustifiable limits on freedom?º 22 Thus more and deeper moral exploration is needed to answer the question whether and how coercive birth control programs in general and forced abor- tion in particular are morally wrong or acceptable. What more fundamental moral principles does the practice of coerced abortion violate? Can compulsory abortion be morally defended for protecting other human values, for instance, the social good? Is compulsory abortion necessarily a moral evil? Coerced Abortion as a Moral Evil For many Westerners, as Geoffrey McNicoll has said, ªBrowbeating a woman to have an abortion, a practice reported in some studies of China’s antinatalist program, would, of course, be found highly objectionable.º 23 The conception of individual rights or freedom constitutes one cornerstone of the Western polit- ical, legal, and moral system. Promoting the family planning program by coer- cion then conflicts with and challenges fundamental values and moral principles, such as reproductive rights and women’s right to personal privacy. So it is not surprising that the Chinese fertility control programs have raised serious crit- icisms and strong objections as long as the existence of coercion has been known here in the West. Coerced abortion undoubtedly violates at least the right of women to per- sonal privacy. The idea of individual rights or the natural rights of human beings plays a dominant role in Western ethical and political life. As a result, the issue of moral and legal rights, the rights of the pregnant woman, is one of the key problems in the contemporary abortion debate. The labels ªpro-lifeº (ªright to lifeº) and ªpro-choiceº (ªright to chooseº) used by opponents in the U.S. abortion debate reveal the fact that the two sides are employing the same language Ðthe language of rights. The distinction between public and private, which has origins in Greco- Roman political and ethical theory and practice, is crucial to prevent unlimited intervention of the state or community into the life of the individual. The English political philosopher James F. Stephen wrote in 1873 that ªConduct which can be described as indecent is always in one way or another a violation of privacy.º 24 The right of personal privacy has been used by the U.S. Supreme Court to favor a woman’s decision whether to terminate her pregnancy. Fem- inists developed this rationale into the popular phrase ªa woman’s right to control her own body.º Jing-Bao Nie 468 Is the right to reproduce a fundamental human right? The Universal Decla- ration of Human Rights classifies the following rights as the first group: life, liberty, and the security of person; freedom from arbitrary arrest, detention, or exile; right to impartial tribunal; freedom of thought and religion; freedom of opinion and expression; freedom of peaceful assembly and association. The right to decide one’s own fertility and reproduction issues is not, at least not explicitly, included as a fundamental right. The U.S. Constitution does not claim the right to reproduce as a constitutional right either. However, the practice of coerced abortion undoubtedly violates at least the personal privacy of a woman, grounds for a claim of fundamental rights in the West. Nevertheless, to question whether or not the right to reproduce is fundamen- tal might result in many further questions: · If the right to reproduce should be seen as a fundamental human right, then why and how? · If the right to reproduce is fundamental, may individuals have as many children as they wish? · Like sexual behavior, must reproductive behavior be completely free from state intervention? · When reproductive rights conflict with some kinds of common good, such as controlling the rapid growth of population, to which should priority be given? In the moral discussion about abortion and many other medical ethics issues in China, the cultural characteristics of the country and the people must be taken into account, for China has a very different cultural tradition from the West. Among ancient Chinese philosophers, doctors, and lay people, the prac- tice of abortion evoked little explicit discussion (if any concern), not to mention public debate, as is still the case in contemporary China. Even though no ancient Chinese thinker explicitly advocated that both abortion and infanticide are justifiable on utilitarian grounds as did Plato and Aristotle, neither was there a Chinese ªPythagorasº to hold that abortion is killing because of the belief that human life begins at conception. The Chinese did not consider abortion morally objectionable mainly because they, like Jewish law and Pla- tonists in ancient Greece, maintain that human life does not begin until birth. Confucianists and Taoists rarely treated the fetus as a human being. So neither the ªAbsolute Sincerity of Great Doctorº (the Chinese ªHippocratic Oathº) by the ªKing of Medicine,º Sun Simiao, nor any other premodern professional maxims written by medical doctors clearly claimed that the physician should ªnot give to a woman abortion remedyº as does the well-known Hippocratic Oath. 25 Nevertheless, to conclude that abortion has never evoked moral con- cern among the people of traditional Chinese society is incorrect. As a matter of fact, the question whether abortion is morally right puzzled Chinese people even in ancient times. 26 Imported Buddhism, the third major philosophical- social-religious doctrine in traditional China, taught that the fetus is a form of life and therefore put limits on artificial abortion. Paying attention to the importance of cultural difference never means justi- fying everything in the culture or society. Studies of cultural factors often can provide information on how today’s reality came about, but does not always ethically justify the practice itself. That something is so does not mean that it The Problem of Coerced Abortion in China 469 ought to be so. In fact, while traditional Chinese moral thoughts and culture give priority to the common good of society over individual rights, in Chinese ethical and political philosophy are rich resources to criticize today’s various policies that adopt compulsion. For example, Taoist philosophy emphasizes the idea of individual freedom and being free from external coercion. For Lao Zi and Zhuang Zi, no governing is better than letting people govern themselves or letting people alone. Taoism has a strong individualist trend. Although Confu- cianism gives great importance to the community, the power of the ruler, and the merit of obeying the authorities in human life, it never approves governing by coercion rather than by persuasion. Confucius and his followers defined a good government as one that loves the people and makes them happy and held that the highest technique of governing is teaching or education. Mencious, the Confucian master second only to Confucius, once distinguished two kinds of government:wang(ªkinglyº) andba(ªforcefulº). He exalted the former and rebuked the latter. In contrast tobawho govern by means of coercion,wang, the leader of kingly government, is a sage. On behalf of people, the sage-king administers through moral construction and virtues and practicesren(ªhuman- ity, humanenessº). In fact, the concept of ªren,º translated as ªbenevolence, human-heartedness, goodness,º is the heart of Confucianism. In the long his- tory of traditional Chinese thought only the totalitarian thinkers of Legalism advocate the absolute power of strong centralized government, draconian law, and harsh punishment. 27 Coerced Abortion as a Necessity for the Social Good Abortion is practiced in the People’s Republic of China mainly as an ultimate mechanism of the family planning program. In the face of the social problem of overpopulation, the one-child family campaign has been proposed and pur- sued as a significant common good for the whole society. This family planning program is widely regarded as necessary to control and reduce the geometrical rate of increase in population in order to raise common living standards, given China’s very limited natural resources. It is well known that one striking characteristic of Chinese cultural and political life is emphasis on the common good, the state authority, the priority of community. Ren-Zong Qiu, one of the leading Chinese bioethicists and phi- losophers of science, has well summarized and expressed the common under- standing of Chinese culture: A quasi-holistic social-political philosophy has been developed from Chinese cultural tradition. It is based on two thousand years of power Ð centralized, autocratic monarchy Ðone that has lacked any rights- oriented, individualist, liberal democratic tradition. In recent decades, Marxism Ðrather, a mixture of Russian and Chinese versions of Marxism Ðhas become the dominant ideology. The historism and social holism of this system, interwoven with traditional ideas, puts the greatest emphasis on nation, society, and country rather than on individuals. 28 Even though this summary may be too general because in this widely accepted view the diversity and plurality of Chinese medical morality and cultural traditions have been either totally ignored or minimized, 29 the generalization Jing-Bao Nie 470 does suggest a significant reason why coercive abortion can go on in practice and be justified in theory in the name of the common good in China. Many Chinese medical ethicists agree with the priority of the common good and use the concept to justify the family planning program. On the issue of reproduction, the author ofEssentials of Medical Ethicsproclaims the priority, actually the tyranny, of the society in a very typical way: ªwhen the prenatal care comes into conflict with birth control and eugenics, it must be subordi- nated to the needs of the latter, because these are in the interest of the whole nation and the whole [of] mankind, as well as in accord with the greatest mo- rality.º 30 To morally justify the measure of coerced abortion for the good of so- ciety is not difficult starting from this sort of logic and theoretical perspective. As a matter of fact, the concept of the social good has been used by Chinese officials and scholars as the most powerful approach to justify fertility control in general and ªpersuadedº abortion in particular. Few deny that overpopula- tion is one of the most serious social problems in today’s China. To achieve the goal of controlling population growth, government emphasizes that citizens have an obligation to follow family planning policy, i.e., use efficient birth control methods and, if unplanned pregnancy occurs, abort. Actually, the con- stitution of the People’s Republic of China that came into force upon promul- gation by the announcement of the 5th National People’s Congress, 1982, requires that ªBoth husband and wife have the duty to put into practice family planning.º To appreciate fully the seriousness of overpopulation in China is not always easy for Westerners, especially people in North America. The concrete numbers Ð now more than 1.1 billion, more than one-fifth of the world’s population, living in the mainland of China Ðmay not make real sense to many people. To put these numbers in North American terms, please imagine that all Canadians live in two cities, Toronto and Quebec. The population of Beijing and Shanghai, the two biggest cities in China, is close to the total population in Canada. Wherever you are in the United States, multiply the number of people you meet five or six times. While the total land areas of the United States and China are almost the same, the population of China is five times that of the United States. Furthermore, China has far fewer natural resources and less habitable area than the United States. Therefore many Chinese scholars and some Western population experts believe and argue that China must persist in controlling population growth, adjusting population structure, and raising the quality of human resources. The rationale here is very simple: the extant overpopulation and its continu- ing growth threaten the whole society; thus individuals must make sacrifices for the eventual common good. The argument for the social good is some- times extended to an obligation to future generations and the world. People living now have a duty to preserve the world so that future societies and individuals will have the resources and health conditions currently available. Fertility control is considered a social good not only for China, but also for the world because overpopulation is a global problem rather than only a local one. If the present overpopulation is not serious enough, the popular wish of contemporary Chinese people to have two or more children makes the problem of population a real social crisis. Even though the reproductive behavior of individuals in China, as in other places, was never totally free from economic limits and cultural influence, for ages the Chinese were free to have as many The Problem of Coerced Abortion in China 471 children as they wished without the direct intervention of the state. As a matter of fact, under Confucianism, to be without offspring was considered the great- est violation of the principle of filial piety, a fundamental duty and merit of the individual. Chinese people developed this idea into a positive maxim, ªMore children, more happiness.º Some contemporary Chinese, especially some peo- ple in rural areas, still hold this belief. In 1985 a survey of one-child households in the rural suburbs of Tianjing Municipality found that about 80 percent hoped to have two children and that some of them had accepted one-child certificates only because they felt they ªhave no choice.º In 1988 a State Family Planning Commission found that 72 percent of all couples and 90 percent of rural couples wanted more than one child and a demographic journal reported other survey results showing that 88 percent of Chinese couples wanted both a boy and a girl. Even in Beijing a survey found that fewer than 20 percent of a sample of 7,622 married women want only one child; 79.7 percent wanted two or more. 31 Although being required to pay income tax in the United States and to limit childbearing in China are vastly different, there is an important similarity between them insofar as the conflict between the genuine self-interest of the individual and the general good of society is concerned. In one case, the indi- vidual wishes to have as many children as desired while ªothersº limit fertility. In the other case, the individual wishes to avoid paying taxes while ªothersº pay theirs. That is to say, both paying tax and limiting reproduction are regarded as necessary for the sake of social good. Confronted with overpopulation on the one hand and the strong will of people to have many children on the other, the government seems to have no choice but to adopt both persuasion and compulsion to achieve a decrease in the rate of population growth and thereby raise people’s living standard. Coer- cion is thus considered a necessary evil for the good of society and eventually for the long-term interests of every member. In the well-known essay ªOn Liberty,º John Stuart Mill argued that civil or social liberty is mainly concerned with ªthe nature and limits of the power which can be legitimately exercised by society over the individuals.º 32 For him, liberty meant protection not only ªagainst the tyranny of the political rulersº but also ªagainst the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them,º 33 etc. He pointed out that ª[t] he only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical and moral, is not a sufficient warrant.º 34 Adopting coerced abortion to promote the one-child fam- ily planning program must first of all answer the question whether having many children really constitutes a harm to others so that state intervention is needed to enforce a number Ðone child per couple. Using the social good as a theoretical justification for the one-child policy and coerced abortion must also resolve the following questions: · Is there really a serious population problem? Or is controlling the popu- lation growth rigorously really a social good? In fact, this issue is contro- versial and some scholars totally deny population size as a real social problem. Jing-Bao Nie 472 · If controlling population increase is a social good, considering the reality of today’s China, is the good an equal advantage to every member in the society? If not, who benefits most? Who least? Might some even be harmed? · Has overpopulation been used by the government as an excuse for other social problems that have resulted from misgoverning? Is promoting fam- ily planning policy just an integral part of keeping and enforcing the extant power structure? · If fertility control is a universal social good, why should and must the interest or right or freedom of individuals be subordinated to the social good of the whole nation and even all humankind? One may argue and the individual may believe that having more children contributes more to society than having just one. · Even if the one-child policy is a social good to which everyone should be committed, is coerced abortion justified as a measure of birth control? Is there not a better way? In other words, cannot the fertility control program really be built on voluntariness, as the government has openly claimed, rather than on coercion or force? Conclusion In spite of official denial, coerced abortion has been enforced in China in the name of social good. For Chinese policymakers, officials, and many scholars, the dilemma is seen in terms of either adopting coercive measures or losing the birth control program entirely. Confronted with the reality of overpopulation and the pressure of most people’s strong will to have two or more children, coercion is employed as an important measure to limit the rapid growth of population. Even though coercion itself is not necessarily a moral evil, forced abortion and other compulsory fertility control mechanisms do violate the individual right to reproduce, the Chinese women’s right to personal privacy. Although traditional Chinese ethical thought gives priority to the common good of society, it cannot be employed to justify the extensive use of coercion. My conclusion is that coerced abortion is highly morally unacceptable because the practice violates individual rights to reproduction and personal privacy as well as the traditional Chinese Ðboth Confucianist and Taoist Ðmoral and polit- ical idea of not governing by coercion. But enforced abortion can be defended for the common good of society. In other words, taking the conflict between the serious problem of overpopulation and the popular will of people to have two or more children into account, forced abortion may be a moral tragedy or a genuine ethical dilemma rather than a thorough moral evil as it first appears. In my paper I have raised many questions, more than I can resolve. More moral and cultural exploration of the practice is greatly needed, and more important and definitely necessary is an open public discussion or debate among Chinese people on abortion in particular and family planning policy in general. Unfortunately and sadly, this latter necessity seems to be especially difficult to realize. Moreover, if the moral exploration is not so much theoretical meditation in the ivory tower as a social practice of people, then the biggest challenge we now face is how Western ethical theories and traditional Chinese moral wisdom can be applied and transformed to change the present reality in China, if the reality is morally wrong. The Problem of Coerced Abortion in China 473 Notes 1. Gordon L.Woman’s Body, Woman’s Right: A Society History of Birth Control in America. Harmonds- worth: Penguin Books, 1977:xii. 2. Qiu RZ, Wang CZ, Gu Y. Can late abortion be ethically justified?Journal of Medicine and Philosophy1989;14:343 ±50. Their conclusion is that ªthe late abortion can be justified ethically in China: 1) if the `one couple, one child’ policy is justifiable; 2) if the couple and the physician take the social good into account; 3) if the mother express [es] her voluntary consent, no matter whether the decision is made on the basis of her own original desire or after persuasion by others that is not coercive; and 4) if the late abortion will entail only a low risk to the mother ‘s health or lifeº (p. 349). Obviously, more ethical explorations are definitely needed regarding the late abortion problem. 3. Aird JS.Slaughter of the Innocents: Coercive Birth Control in China. Washington, D.C.: The Amer- ican Enterprise Institute, 1990:88. 4. Banister J.China’s Changing Population. Stanford: Stanford University Press, 1987:216. 5. Qiu RZ. Medical ethics and Chinese culture. In: Pellegrino ED, Mazzabella P, Corsi P, eds.Trans- cultural Dimensions in Medical Ethics. Frederick, Maryland: University Publishing Group, 1992:155 ±74. 6. See note 4, Banister 1987:208. 7. See note 4, Banister 1987:209 ±10. 8. See note 4, Banister 1987:209±10. 9. The 20 thMeeting of the Standing Committee of the Seventh Provincial People’s Congress (3 March 1991),International Digest of Health Legislation1994;45 (3). 10. See note 3, Aird 1990:89. 11. See note 4, Banister 1987:209. 12. See note 3, Aird 1990:16 ±7. 13. Aird JS. Population policies: strategies of fertility control: compulsion. In: Reich WT, ed.Ency- clopedia of Bioethics, rev. ed., vol. 4. New York: Simon & Schuster Macmillan, 1995:2023. 14. Beauchamp TL, Childress JF.Principles of Biomedical Ethics,4 thed. New York: Oxford University Press, 1994:164. 15. See note 14, Beauchamp, Childress 1994. 16. See note 14, Beauchamp, Childress 1994. 17. Wertheimer A.Coercion. Princeton: Princeton University Press, 1990:xi. 18. See note 14, Beauchamp, Childress 1994. 19. Edwards RB, Erde EL. Freedom and coercion. In: Reich WT, ed.Encyclopedia of Bioethics, rev. ed., vol. 1. New York: Simon & Schuster Macmillan, 1995:886. 20. See note 17, Wertheimer 1990:4. 21. See note 17, Wertheimer 1990. 22. See note 19, Edwards, Erde 1995:886. 23. McNicoll G. Strong persuasion. In: Reich WT, ed.Encyclopedia of Bioethics, rev. ed., vol. 1. New York: Simon & Schuster Macmillan, 1995. 24. Stephen JF.Liberty, Equality and Fraternity. Cambridge: Cambridge University Press, 1967 [1893]:160. 25. For ancient Chinese medical ethics, see Unschuld PU.Medical Ethics in Imperial China: A Study in Historical Anthropology. Berkeley: University of California Press, 1979. On the theories and prac- tice of medical ethics in ancient Greece and Rome, see Carrick P.Medical Ethics in Antiquity: Phil- osophical Perspectives on Abortion and Euthanasia. Dordrecht: D. Reidel Publishing Company, 1985. 26. There does not exist much primary or secondary literature on abortion in premodern China. About ancient Chinese law on abortion, see Luk BH. Abortion in Chinese law.American Journal of Comparative Law25 (1):372 ±90. On the traditional Chinese understandings (especially medical professionals’ understandings) of abortion and the fetus, see Nie JB. Coerced abortion in China: an ethical problem in its historical and cultural context. Paper presented at the 38 thNational [Medical] Student Research Forum, Galveston, Texas, April 1997. 27. On traditional Chinese moral and political thought in the English language see, for example, Fung YL, ed. Bodde D.A Short History of Chinese Philosophy. New York: Macmillan, 1948; Fung YL, trans. Bodde D.A History of Chinese Philosophy, vols. 1,2. Princeton: Princeton University Press, 1952, 1953; Greel HG.Chinese Thought from Confucius to Mao Tse-tung. Chicago: University of Chicago Press, 1954; and Hsiao KC. Trans. Mote FW.A History of Chinese Political Thought. Princeton: Princeton University Press, 1979. 28. See note 5, Qiu 1992:170 ±1. 29. Nie JB. Reexamining the characteristics of American and Chinese medical moralities: toward an interpretive cross-cultural bioethics. Paper presented at the 1996 Joint Meeting of the Society for Jing-Bao Nie 474 Health and Human Values and the Society for Bioethics Consultation, Cleveland, Ohio, October 1996. See also Nie JB. Inquiring for the foundations of medical morality as the soul of medical ethics.Zhongguo Yixue Lunlixue[Chinese Medical Ethics] 1996;5. 30. Quoted in Qiu et al.. See note 2, Qiu, Wang, Gu 1989. 31. See note 3, Aird 1990:84. The result of an unpublished survey made by the Chinese Society for Sociology in 1979 showed that a considerable percentage of city inhabitants (19.44 ±30.95%) and the majority of peasants (51.34 ±79.53%) wanted to have two or more children. The lower percentage of opposition in 1979 hardly means that there were more people then who approved the family planning program of the state. One important factor is that people were more afraid to express what they thought even in the sociological survey, given newly initiated economic and political policies and the fact that the country remained under the shadow of Mao’s dictatorship. 32. Mill JS.On Liberty, ch. 1. In: Burtt EA, ed.The English Philosophers from Bacon to Mill. New York: Modern Library, 1939:949. 33. See note 32, Mill 1939:952. 34. See note 32, Mill 1939:956. This article is a part of the research project on contemporary mainland Chinese people’s moral views and experiences of abortion. It was written in 1996 at the Institute for the Medical Human- ities of the University of Texas Medical Branch at Galveston. I thank Ms. Faith Legay, Prof. Harold Vanderpool, Dr. Kirk Smith, Prof. Mary Winkler, and Dr. John Douard for their valuable sugges- tions and generous help. I am also grateful to Arthur Kleinman for his valuable comments on the early version of this paper which was presented at the poster section of the National Meeting of MD/PhD Education and Research in the Humanities and Social Sciences at the University of Chicago in 1996. Commentary William H. Jennings In the fall of 1996 I taught a course at Fudan University in Shanghai dealing with medical ethics in America. As part of the course we spent some time on the heated American debate about abor- tion. The reaction of Chinese students was revealing. Many of the fifty-some students said they had never heard abortion dis- cussed in a class and never thought of it as controversial. When asked if the American debate related to the Chi- nese situation, they said ªnoº because American has a smaller population and can afford the luxury of the debate. They felt China has too many people and must have abortions to control the population. As Jing-Bao Nie notes, there seems little possibility of a free public discussion of abortion.Is this because of student fears about discussions of controversial topics? There is more openness in China than is often reported and students would find ways to express concerns about abortion if they wished. They openly discuss topics as varied as euthanasia and official corruption. On abortion they acquiesce, it seems, because they strongly support China’s current eco- nomic policies and see enforced abor- tion as essential to those policies. In simple end-justifies-the-means reason- ing, enforced abortions are necessary if China is to prosper. This kind of reasoning seemed to be reinforced by a lack of interest in what in America is sometimes called ªthe moral status of the fetus.º As I out- lined the stages of fetal development in class, showing how a view on abor- tion might relate to the development taking place in the womb, students lis- tened with respect. But then any rele- vance of the discussion for China was Commentary 475 easily dismissed with ªbut of course in China we have always thought life begins at birth.º Abortion does not raise moral concerns about the fetus, they were saying, because China has decided that life in the womb is not yet human. There are interesting similarities between the views of these Chinese students and the argument of Jing-Bao Nie’s paper. It seems to me that like my students he chooses to avoid a direct discus- sion of the abortion issue.His paper is not about abortion, it is about coercion and birth control. He says most couples in China wish to have two or more children and asks whether, in the face of this desire, coercion to limit popu- lation is justified. 1Abortion, steriliza- tion, and the use of IUDs are common Chinese methods of birth control; Nie’s argument could, without significant changes, focus on sterilization or the IUD as coercive methods. He does not address the special moral issues that set abortion apart from other means of birth control. This leads to a second observation. Early in the paper Nie distinguishes between late abortions and coerced abortion, and he chooses to leave the first issue to others. But by this plan he sidesteps an issue that must be tied to the question of coercion: the issue ofwhenin the nine months of devel- opment an abortion is done. To a sen- sitive observer, a first trimester abortion is different from one in the second tri- mester, which isverydifferent from a third trimester abortion. The law allows for abortions up to 28 weeks, but many abortions in China are later still because of the great pressure to limit births. 2 These millions of very late abortions are a major reason China receives so much criticism from abroad. On the issue of late abortions Nie recommends an article whose chief au- thor is the Beijing medical ethicist Ren- Zong Qiu. In the article the focus ison social good and the health of the mother, with no attention given to the moral status of the fetus. We may sur- mise that, like my students, Qiu thinks no special moral concern is due the fetus since it is not yet human. As Qui says elsewhere, ª Traditionally, abortion has not been seen as a seri- ous issue in China. Most Chinese would agree with the ancient sage Xun Kuang, who argued that human life begins at birth.º 3Nie also cites this view as rooted in traditional Confu- cian thinking. If an outsider can bring anything to the Chinese discussion, it seems to me, it should be to encourage close atten- tion to what is taking place in the womb. In a land where Marxism has insisted that values be rooted in scien- tific evidence, the growing scientific research dealing with fetal life should shed light on life before birth. This does not mean rejecting all abortions or abandoning the ªlife begins at birthº tradition, but it does encourage respect for the evolving fetal life. We can learn well from the Jewish tradition, which, like the Chinese, usually says life begins at birth but also recognizes a range of complicated issues related to the devel- oping fetus. If the issue is to be opened in China, a discussion broader than that sug- gested by Nie is needed. The minority views of Chinese history, reflected in a footnote, must resurface. Nie cites one early work ªgreatly influenced by imported Buddhism,º and surely today’s Buddhist views could enrich the discussion. Unfortunately, China’s religious voices are effectively stifled because of government demand that the five recognized religions give uncritical patriotic support to official policies. The millions of Chinese who follow the Buddhist path Ðalong with smaller but significant numbers who are Muslim, Catholic, or Protestant Christian Ðcannot be true to their reli- William H. Jennings 476 gious convictions and also follow offi- cial policy. To force upon them coerced abortions is a form of religious perse- cution. They must be respected and their voices should be heard. In expressing such concerns, I write as an outsider. And in the background I can hear the plaint of my students, ªWhy are Americans so critical of China?º Certainly, much of the ªChina- bashingº coming from the American political right is misplaced and unfor- tunately colors any discussion of abor- tion. The harsh language in much of the media, in hearings in Congress, and in the writings of such authors as John Aird 4undermine the possibilities of serious dialogue with China on the issue of abortion. Two areas of concern should be sep- arated. Too often the heavy-handed authoritarian government of China imposes policies unacceptable to Chi- nese people and to friends of China beyond her borders. Nie rightly criti- cizes ªgovernment by coercion, not per- suasionº as being out of harmony with the best of Chinese history. We must applaud his tempered but brave criti- cism of his own government. But there is more. There is a Chi- nese tradition on abortion that differs significantly from much Western think- ing, a tradition supported by Nie. This is not the product of an authoritarian government but grows out of a dis- tinct way of understanding humans and human society. I have argued that it is appropriate, even necessary, for outsiders to raise objections to the implications of this Chinese tradition for the abortion issue. But this must be done in a spirit of dialogue and mutual respect. Notes 1. It is clear Nie has considerable dislike for the coercion that is common in the Chinese abor-tion picture. But he seems to hedge some- what. His meaning is not clear when he says (twice) that ªcoerced abortion may be a moral tragedy or a genuine ethical dilemma rather than a thorough moral evil as it first appears.º This is confusing. He seems to say that it is bad but not super bad (i.e., a thorough moral evil). 2. Rigdon SM. Abortion law and practice in China: an overview with comparisons to the United States.Social Science and Medicine 1996;42:543 ±60. Two points are especially note- worthy: (1) China is the only country with no penalty for abortions at any stage of preg- nancy. And (2) Rigdon notes ªsubstantial doc- umentation on late-term abortions,º in some cases one-third or more of all abortions. 3. Qui RZ and Jonsen AR. Medical ethics: con- temporary China. In: Reich WT, ed.Encyclo- pedia of Bioethics.New York: Simon & Schuster Macmillan, 1995: 4. U.S. House of Representatives, Subcommit- tee on International Operations and Human Rights.Hearings: Coercive Population Control in China (June 1995).Washington, D.C.: U.S. Government Printing Office, 1990. John S. Aird, author ofSlaughter of The Innocentscited by Nie, was the chief witness at these hear- ings. Aird testified a skepticism about the ªpopulation crisisº thesis, saying China does not have too many people and therefore does not need enforced population control. Such a claim is incredible to anyone who has lived in China for a time! *** Commentary Mary G. Winkler On the first page of this very timely paper the author quotes Linda Gor- don: ªBirth control has always been primarily an issue of politics, not of technology.º This statement provides a theme for response to Jing-Bao Nie’s arguments. In reading this paper, I found myself reminded of two of George Orwell’s insights: (1) When gov- ernments use euphemisms they are usually up to no good: ªSuch phrase- ology is needed if one wants to name things without calling up mental pic- Commentary 477 tures of themº [e.g., the use of ªreme- dial measureº for abortion]. ªA mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up the details.º 1(2) Sexual- ity and the sexual act (I would add here reproduction Ðhaving children) can be a powerful tool of subversion and rebellion. One’s sexuality (and reproductive ability) can be the last line of defense against repression or authority. Before discussing two specific points in this paper, I want to suggest some ways in which Orwell’s insights might illuminate a discussion of the morality of coerced abortion in late 20th cen- tury China. First, they remind us that the desire for children and the whole process of creating and bringing chil- dren into the world often operates out- side the realm of reason. Hence the need to find language to express these extra-rational desires that clarify rather than obscure them. Where the Chinese government lets fall the snow of euphe- mism, many conservative American critics Ðsuch as John Aird Ðuse such heated language that the outlines are hidden in the flame and smoke of their rhetoric. It is important, I believe, to include in a discussion of reproduc- tive issues the powerful, unruly nature of the desires involved. Moreover, it is good to begin delib- erations with some basic questions: What is the source of the desire for children? What do they represent at specific times or places, in specific cul- tural contexts? In the context of coerced abortion in China I would ask: What is the source of the desire for more than one child? Who holds the desire most firmly? What is the source of the determination that allows a woman or a couple to withstand the fear of pun- ishment to acquire an ªextraº child? To what extent is the decision a necessity Ðthe need to provide for one’s old age? To what extent is it the resultof ancient ideas about gender roles? Are second pregnancies often an attempt to produce a male child? 2Can the decision to have a second child be considered a wholesome act of rebel- lion against a repressive system, or must it be seen as defiance against the social good? After posing these broad and vex- ing questions, I will address two sec- tions of the paper: the section on rights and justice and the section on the social good. Dr. Nie asks whether the right to reproduce is a fundamental human right. He acknowledges that many U.N. documents claim the existence of an individual right to reproduce ±e.g., the 1981 U.N. Symposium on Population and Human Rights, which considers both compulsory abortion and unqual- ified prohibition of abortion to be seri- ous violations of human rights. The delegates to the 1995 women’s confer- ence in Beijing passed a resolution declaring that reproductive rights are human rights (although they softened the absolute with the modifying state- ment that specific implementation of this right should reflect individual cul- tures). Neither the Universal Declara- tion of Human Rights nor the U.S. Constitution claim reproductive free- doms as a right. This observation leads the author to ask a series of important questions beginning with, ªIf the right to repro- duce is a fundamental right, then why and how?º To begin to answer this question almost immediately moves us (or me at any rate) out of the discus- sion of rights and into the realm of cultural and historical context. It is the Declaration of Independence, not the Constitution, that proclaims the right to ªlife, liberty and the pursuit of hap- piness.º (It also reminds the King, the British Parliament, and the American colonists that governments ªderive their just power from the consent of the governedº Ðsomething to consider Mary G. Winkler 478 when discussing the social good.) There is no mention of reproductive rights because the question as we in the late 20th century understand it would have been largely inconceivable. Why? As in any preindustrial society I know of, having children was not only a natu- ral outcome of the sexual act, it was also considered (in general) a social good. Infant mortality was high in the 18th century and agricultural societies are labor intensive, ªbe fruitful and multiplyº was a practical as well as a religious dictum. Moreover, Western culture Ðinsofar as it was Christian culture Ðwas imbued with the Church doctrines on sexuality and reproduction. Both Roman Catholic and Protestant mar- riage ceremonies reminded the couple and the witnesses that the first reason for marrying was the procreation of children, in conformance with divine commandment. For example, theBook of Common Prayer(the copy I quote from was published in 1814) says explicitly: First, marriage was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to praise of his holy Name. I offer this example to illustrate how fruitful it is to see rights in the light of the cultures or societies that espouse them. Next, is the issue of coerced abor- tion and social good. What is espe- cially well done in this paper is the evocation for westerners of the feel of overpopulation Ðthis is crucial for set- ting the limits of the discussion and for creating understanding.Buta dis- cussion of the social good should beas inclusive of all elements and fac- tors. The author argues that with the reality of overpopulation on the one hand and ªthe strong will of the peo- pleº to have many children on the other, the government ªseems to have no choiceº but to adopt both persua- sion and compulsion. The author then cites J.S. Mill: ªGovernments may exer- cise control over a citizen against his will to prevent harm to others.º In the light of Mill’s statement, I would ask if the women involved are not doubly coerced Ðcoerced by cultural and social pressures that lead them to produce more children, and coerced by their government to forgo having more than one child? In conclusion, I suggest that full dis- cussion of the social good include the role of gender and economic need. In other words, I would suggest an inclu- sive approach to the discussion of what constitutes social good. That is one rea- son I find that the author ‘s conclusion points in fruitful directions. By broad- ening the question of social good and by drawing in the Confucian concept ofren(ªbenevolence, humanityº), he makes a significant contribution to the debate about enforced abortion in China. Notes 1. Orwell G. Politics and the English language. In:The Orwell Reader: Fiction, Essays, and Report- age.San Diego, New York: Harcourt Brace & Co., 1984:363. 2. For a fuller discussion of these issues, see Rigdon SM. Abortion Law and practice in China: an overview with comparisons to the United States.Social Science and Medicine 1996;42 (4):543 ±60. Commentary 479
need help with an essay of around 2000 words, I’ll send u topics information
This article was downloaded by: [University of Otago] On: 16 March 2015, At: 14:42 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Canadian Journal of Philosophy Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rcjp20 Abortion and The Concept Of A Person JANE ENGLISH a a University of North Carolina , Chapel Hill Published online: 01 Jul 2013. To cite this article: JANE ENGLISH (1975) Abortion and The Concept Of A Person, Canadian Journal of Philosophy, 5:2, 233-243 To link to this article: http://dx.doi.org/10.1080/00455091.1975.10716109 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. 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Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditionsDownloaded by [University of Otago] at 14:42 16 March 2015 CANADIAN JOURNAL OF PHILOSOPHY Volume V, Number 2, October 1975 Abortion and The Concept Of A Person* JANE ENGLISH, University of North Carolina, Chapel Hill The abortion debate rages on. Yet the two most popular positions seem to be clearly mistaken. Conservatives maintain that a human life begins at conception and that therefore abortion must be wrong because it is murder. But not all killings of humans are murders. Most notably, self defense may justify even the killing of an innocent per­ son. Liberals, on the other hand, are just as mistaken in their argument that since a fetus does not become a person until birth, a woman may do whatever she pleases in and to her own body. First, you cannot do as you please with your own body if it affects other people adversely. 1 Second, if a fetus is not a person, that does not imply that you can do to it anything you wish. Animals, for example, are not persons, yet to kill or torture them for no reason at all is wrong. At the center of the storm has been the issue of just when it is between ovulation and adulthood that a person appears on the scene. Conservatives draw the line at conception, liberals at birth. In this paper I first examine our concept of a person and conclude that no single criterion can capture the concept of a person and no sharp line can be drawn. Next I argue that if a fetus is a person, abortion is still justifiable in many cases; and if a fetus is not a person, killing it is still wrong in many cases. To a large extent, these two solutions are in * I am deeply indebted to larry Crocker and Arthur Kuflik for their constructive comments. 1 We also have paternalistic laws which keep us from harming our own bodies even when no one else is affected. Ironically, anti-abortion laws were originally designed to protect pregnant women from a dangerous but tempting procedure. 233 Downloaded by [University of Otago] at 14:42 16 March 2015 jane English agreement. I conclude that our concept of a person cannot and need not bear the weight that the abortion controversy has thrust upon it. The several factions in the abortion argument have drawn battle lines around various proposed criteria for determining what is and what is not a person. For example, Mary Anne Warren 2 lists five features (capacities for reasoning, self-awareness, complex com­ munication, etc.) as her criteria for personhood and argues for the permissibility of abortion because a fetus falls outside this concept. Baruch Brody 3 uses brain waves. Michael Tooley 4 picks having-a­ concept-of-self as his criterion and concludes that infanticide and abortion are justifiable, while the killing of adult animals is not. On the other side, Paul Ramsey 5 claims a certain gene structure is the defining characteristic. John Noonan 6 prefers conceived-of-humans and presents counterexamples to various other candidate criteria. For in­ stance, he argues against viability as the criterion because the new­ born and infirm would then be non-persons, since they cannot live without the aid of others. He rejects any criterion that calls upon the sorts of sentiments a being can evoke in adu Its on the grounds that this would allow us to exclude other races as non-persons if we could just view them sufficiently unsentimentally. These approaches are typical: foes of abortion propose sufficient conditions for personhood which fetuses satisfy, while friends of abor­ tion counter with necessary conditions for personhood which fetuses lack. But these both presuppose that the concept of a person can be captured in a strait jacket of necessary and/or sufficient conditions.? 2 Mary Anne Warren, “On the Moral and Legal Status of Abortion,” Monist 57 (1973), p. 55. 3 Baruch Brody, “Fetal Humanity and the Theory of Essentialism,” in Robert Baker and Frederick Elliston (eds.), Philosophy and Sex (Buffalo, N.Y., 1975). 4 Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs 2 (1971). 5 Paul Ramsey, “The Morality of Abortion,” in James Rachels, ed., Moral Problems (New York, 1971). 6 John Noonan,” Abortion and the Catholic Church: a Summary History,” Natural Law Forum 12 (1967), pp. 125-131. 7 Wittgenstein has argued against the possibility of so capturing the concept of a game, Philosophical Investigations (New York, 1958), §66-71. 234 Downloaded by [University of Otago] at 14:42 16 March 2015 Abortion and Concept of a Person Rather, ‘person’ is a cluster of features, of which rationality, having a self concept and being conceived of humans are only part. What is typical of persons? Within our concept of a person we in­ clude, first, certain biological factors: descended from humans, hav­ ing a certain genetic make-up, having a head, hands, arms, eyes, capable of locomotion, breathing, eating, sleeping. There are psy­ chological factors: sentience, perception, having a concept of self and of one’s own interests and desires, the ability to use tools, the ability to use language or symbol systems, the ability to joke, to be angry, to doubt. There are rationality factors: the ability to reason and draw conclusions, the ability to generalize and to learn from past ex­ perience, the ability to sacrifice present interests for greater gains in the future. There are social factors: the ability to work in groups and respond to peer pressures, the ability to recognize and consider as valuable the interests of others, seeing oneself as one among “other minds,” the ability to sympathize, encourage, love, the ability to evoke from others the responses of sympathy, encouragement, love, the ability to work with others for mutual advantage. Then there are legal factors: being subject to the law and protected by it, having the ability to sue and enter contracts, being counted in the census, having a name and citizenship, the ability to own property, inherit, and so forth. Now the point is not that this list is incomplete, or that you can find counterinstances to each of its points. People typically exhibit rationality, for instance, but someone who was irrational would not thereby fail to qualify as a person. On the other hand, something could exhibit the majority of these features and still fail to be a person, as an advanced robot might. There is no single core of necessary and suf­ ficient features which we can draw upon with the assurance that they constitute what really makes a person; there are only features that are more or less typical. This is not to say that no necessary or sufficient conditions can be given. Being alive is a necessary condition for being a person, and be­ ing a U.S. Senator is sufficient. But rather than falling inside a sufficient condition or outside a necessary one, a fetus lies in the penumbra region where our concept of a person is not so simple. For this reason I think a conclusive answer to the question whether a fetus is a person is unattainable. Here we might note a family of simple fallacies that proceed by stating a necessary condition for personhood and showing that a fetus has that characteristic. This is a form of the fallacy of affirming the con­ sequent. For example, some have mistakenly reasoned from the premise that a fetus is human (after all, it is a human fetus rather than, say, a canine fetus), to the conclusion that it is a human. Adding an equivocation on ‘being’, we get the fallacious argument that since a fetus is something both living and human, it is a human being. 235 Downloaded by [University of Otago] at 14:42 16 March 2015 jane English Nonetheless, it does seem clear that a fetus has very few of the above family of characteristics, whereas a newborn baby exhibits a much larger proportion of them- and a two-year-old has even more. Note that one traditional anti-abortion argument has centered on pointing out the many ways in which a fetus resembles a baby. They emphasize its development (“It already has ten fingers … “) without mentioning its dissimilarities to adults (it still has gills and a tail). They also try to evoke the sort of sympathy on our part that we only feel toward other persons (“Never to laugh … or feel the sunshine?”). This all seems to be a relevant way to argue, since its purpose is to persuade us that a fetus satisfies so many of the important features on the list that it ought to be treated as a person. Also note that a fetus near the time of birth satisfies many more of these factors than a fetus in the early months of development. This could provide reason for making dis­ tinctions among the different stages of pregnancy, as the U.S. Supreme Court has done.a Historically, the time at which a person has been said to come into existence has varied widely. Muslims date personhood from fourteen days after conception. Some medievals followed Aristotle in placing ensoulment at forty days after conception for a male fetus and eighty days for a female fetus 9 • In European common law since the Seventeenth Century, abortion was considered the killing of a person only after quickening, the time when a pregnant woman first feels the fetus move on its own. Nor is this variety of opinions surprising. Biologically, a human being develops gradually. We shouldn’t expect there to be any specific time or sharp dividing point when a person appears on the scene. For these reasons I believe our concept of a person is not sharp or decisive enough to bear the weight of a solution to the abortion con­ troversy. To use it to solve that problem is to clarify obscurum per obscurius. II Next let us consider what follows if a fetus is a person after all. Judith Jarvis Thomson’s landmark article, “A Defense of Abortion,”1o 8 Not because the fetus is partly a person and so has some of the rights of persons, but rather because of the rights of person-like non-persons. This I discuss in part Ill below. 9 Aristotle himself was concerned, however, with the different question of when the soul takes form. For historical data, see J immye Kimmey, “How the Abortion laws Happened,” Ms. 1 (April, 1973), pp. 48ft and John Noonan, /oc. cit. 10 ]. ]. Thomson, “A Defense of Abortion”, Philosophy and Public Affairs 1 (1971). 236 Downloaded by [University of Otago] at 14:42 16 March 2015 Abortion and Concept of a Person correctly points out that some additional argumentation is needed at this point in the conservative argument to bridge the gap between the premise that a fetus is an innocent person and the conclusion that kill­ ing it is always wrong. To arrive at this conclusion, we would need the additional premise that killing an innocent person is always wrong. But killing an innocent person is sometimes permissible, most notably in self defense. Some examples may help draw out our intuitions or or­ dinary judgments about self defense. Suppose a mad scientist, for instance, hypnotized innocent people to jump out of the bushes and attack innocent passers-by with knives. If you are so attacked, we agree you have a right to kill the attacker in self defense, if killing him is the only way to protect your life or to save yourself from serious injury. It does not seem to matter here that the attacker is not malicious but himself an innocent pawn, for your killing of him is not done in a spirit of retribution but only in self defense. How severe an injury may you inflict in self defense? In part this depends upon the severity of the injury to be avoided: you may not shoot someone merely to avoid having your clothes torn. This might lead one to the mistaken conclusion that the defense may only equal the threatened injury in severity; that to avoid death you may kill, but to avoid a black eye you may only inflict a black eye or the equivalent. Rather, our laws and customs seem to say that you may create an injury somewhat, but not enormously, greater than the injury to be avoided. To fend off an attack whose outcome would be as serious as rape, a severe beating or the loss of a finger, you may shoot; to avoid having your clothes torn, you may blacken an eye. Aside from this, the injury you may inflict should only be the minimum necessary to deter or incapacitate the attacker. Even if you know he intends to kill you, you are not justified in shooting him if you could equally well save yourself by the simple expedient of running away. Self defense is for the purpose of avoiding harms rather than equalizing harms. Some cases of pregnancy present a parallel situation. Though the fetus is itself innocent, it may pose a threat to the pregnant woman’s well-being, life prospects or health, mental or physical. If the pregnan­ cy presents a slight threat to her interests, it seems self defense cannot justify abortion. But if the threat is on a par with a serious beating or the loss of a finger, she may kill the fetus that poses such a threat, even if it is an innocent person. If a lesser harm to the fetus could have the same defensive effect, killing it would not be justified. It is unfortunate that the only way to free the woman from the pregnancy entails the death of the fetus (except in very late stages of pregnancy). Thus a self 237 Downloaded by [University of Otago] at 14:42 16 March 2015 jane English defense model supports Thomson’s point that the woman has a right only to be freed from the fetus, not a right to demand its death. 11 The self defense model is most helpful when we take the pregnant woman’s point of view. In the pre-Thomson literature, abortion is often framed as a question for a third party: do you, a doctor, have a right to choose between the life of the woman and that of the fetus? Some have claimed that if you were a passer-by who witnessed a struggle between the innocent hypnotized attacker and his equally in­ nocent victim, you would have no reason to kill either in defense of the other. They have concluded that the self defense model implies that a woman may attempt to abort herself, but that a doctor should not assist her. I think the position of the third party is somewhat more complex. We do feel some inclination to intervene on behalf of the victim rather than the attacker, other things equal. But if both parties are innocent, other factors come into consideration. You would rush to the aid of your husband whether he was attacker or attackee. If a hypnotized famous violinist were attacking a skid row bum, we would try to save the individual who is of more value to society. These con­ siderations would tend to support abortion in some cases. But suppose you are a frail senior citizen who wishes to avoid being knifed by one of these innocent hypnotics, so you have hired a bodyguard to accompany you. If you are attacked, it is clear we believe that the bodyguard, acting as your agent, has a right to kill the attacker to save you from a serious beating. Your rights of self defense are transferred to your agent. I suggest that we should similarly view the doctor as the pregnant woman’s agent in carrying out a defense she is physically incapable of accomplishing herself. Thanks to modern technology, the cases are rare in which a pregnancy poses as clear a threat to a woman’s bodily health as an at­ tacker brandishing a switchblade. How does self defense fare when more subtle, complex and long-range harms are involved? To consider a somewhat fancifu I example, suppose you are a highly trained surgeon when you are kidnapped by the hypnotic attacker. He says he does not intend to harm you but to take you back to the mad scientist who, it turns out, plans to hypnotize you to have a permanent mental block against all your knowledge of medicine. This would automatically destroy your career which would in turn have a serious adverse impact on your family, your personal relationships and your happiness. It seems to me that if the only way you can avoid this out­ come is to shoot the innocent attacker, you are justified in so doing. You are defending yourself from a drastic injury to your life prospects. I think it is no exaggeration to claim that unwanted pregnancies (most 11 Ibid., p. 52. 238 Downloaded by [University of Otago] at 14:42 16 March 2015 Abortion and Concept of a Person obviously among teenagers) often have such adverse life-long conse­ quences as the surgeon’s loss of livelihood. Several parallels arise between various views on abortion and the self defense model. let’s suppose further that these hypnotized at­ tackers only operate at night, so that it is well known that they can be avoided completely by the considerable inconvenience of never leav­ ing your house after dark. One view is that since you could stay home at night, therefore if you go out and are selected by one of these hyp­ notized people, you have no right to defend yourself. This parallels the view that abstinence is the only acceptable way to avoid pregnancy. Others might hold that you ought to take along some defense such as Mace which will deter the hypnotized person without killing him, but that if this defense fails, you are obliged to submit to the resulting in­ jury, no matter how severe it is. This parallels the view that contracep­ tion is all right but abortion is always wrong, even in cases of con­ traceptive failure. A third view is that you may kill the hypnotized person only if he will actually kill you, but not if he will only injure you. This is like the position that abortion is permissible only if it is required to save a woman’s life. Finally we have the view that it is all right to kill the at­ tacker, even if only to avoid a very slight inconvenience to yourself and even if you knowingly walked down the very street where all these in­ cidents have been taking place without taking along any Mace or protective escort. If we assume that a fetus is a person, this is the analogue of the view that abortion is always justifiable,” on demand.” The self defense model allows us to see an important difference that exists between abortion and infanticide, even if a fetus is a person from conception. Many have argued that the only way to justify abor­ tion without justifying infanticide would be to find some characteristic of personhood that is acquired at birth. Michael Tooley, for one, claims infanticide is justifiable because the really significant characteristics of person are acquired some time after birth. But all such approaches look to characteristics of the developing human and ignore the relation between the fetus and the woman. What if, after birth, the presence of an infant or the need to support it posed a grave threat to the woman’s sanity or life prospects? She could escape this threat by the simple expedient of running away. So a solution that does not entail the death of the infant is available. Before birth, such solutions are not available because of the biological dependence of the fetus on the woman. Birth is the crucial point not because of any characteristics the fetus gains, but because after birth the woman can defend herself by a means less drastic than killing the infant. Hence self defense can be used to justify abortion without necessarily thereby justifying infanticide. 239 Downloaded by [University of Otago] at 14:42 16 March 2015 Jane English Ill On the other hand, supposing a fetus is not after all a person, would abortion always be morally permissible? Some opponents of abortion seem worried that if a fetus is not a full-fledged person, then we are justified in treating it in any way at all. However, this does not follow. Non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their in­ terests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all. Treatment of animals is a case in point. It is wrong to torture dogs for fun or to kill wild birds for no reason at all. It is wrong Period, even though dogs and birds do not have the same rights persons do. However, few people think it is wrong to use dogs as experimental animals, causing them considerable suffering in some cases, provided that the resulting research will probably bring discoveries of great benefit to people. And most of us think it all right to kill birds for food or to protect our corps. People’s rights are different from the con­ sideration we give to animals, then, for it is wrong to experiment on people, even if others might later benefit a great deal as a result of their suffering. You might volunteer to be a subject, but this would be supererogatory; you certainly have a right to refuse to be a medical guinea pig. But how do we decide what you may or may not do to non­ persons? This is a difficult problem, one for which I believe no ade­ quate account exists. You do not want to say, for instance, that tor­ turing dogs is all right whenever the sum of its effects on people is good -when it doesn’t warp the sensibilities of the torturer so much that he mistreats people. If that were the case, it would be all right to torture dogs if you did it in private, or if the torturer lived on a desert island or died soon afterward, so that his actions had no effect on peo­ ple. This is an inadequate account, because whatever moral considera­ tion animals get, it has to be indefeasible, too. It will have to be a general proscription of certain actions, not merely a weighing of the impact on people on a case-by-case basis. Rather, we need to distinguish two levels on which consequences of actions can be taken into account in moral reasoning. The traditional objections to Utilitarianism focus on the fact that it operates solely on the first level, taking all the consequences into account in particular cases only. Thus Utilitarianism is open to “desert island” and “lifeboat” counterexamples because these cases are rigged to make the consequences of actions severely limited. Rawls’ theory could be described as a teleological sort of theory, 240 Downloaded by [University of Otago] at 14:42 16 March 2015 Acrasia, Normative Psychology but with teleology operating on a higher level. 12 In choosing the prin­ ciples to regulate society from the original position, his hypothetical choosers make their decision on the basis of the total consequences of various systems. Furthermore, they are constrained to choose a general set of rules which people can readily learn and apply. An ethical theory must operate by generating a set of sympathies and at­ titudes toward others which reinforces the functioning of that set of moral principles. Our prohibition against killing people operates by means of certain moral sentiments including sympathy, compassion and guilt. But if these attitudes are to form a coherent set, they carry us further: we tend to perform supererogatory actions, and we tend to feel similar compassion toward person-like non-persons. It is crucial that psychological facts play a role here. Our psy­ chological constitution makes it the case that for our ethical theory to work, it must prohibit certain treatment of non-persons which are significantly person-like. If our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work. For this reason, we would choose in the original position to make mistreatment of some sorts of animals wrong in general (not just wrong in the cases with public impact), even though animals are not themselves parties in the original position. Thus it makes sense that it is those animals whose appearance and behavior are most like those of people that get the most consideration in our moral scheme. It is because of “coherence of attitudes’; I think, thatthe simi larityof a fetus to a baby is very significant. A fetus one week before birth is so much like a newborn baby in our psychological space that we cannot allow any cavalier treatment of the former while expecting full sym­ pathy and nurturative support for the latter. Thus, I think that anti­ abortion forces are indeed giving their strongest arguments when they point to the similarities between a fetus and a baby, and when they try to evoke our emotional attachment to and sympathy for the fetus. An early horror story from New York about nurses who were expected to alternate between caring for six-week premature infants and dispos­ ing of viable 24-week aborted fetuses is just that – a horror story. These beings are so much alike that no one can be asked to draw a dis­ tinction and treat them so very differently. Remember, however, that in the early weeks after conception, a fetus is very much unlike a person. It is hard to develop these feelings for a set of genes which doesn’t yet have a head, hands, beating heart, response to touch or the ability to move by itself. Thus it seems to me that the alleged” slippery slope” between conception and birth is not 12 John Rawls, A Theory of justice (Cambridge, Mass., 1971), §§ 3-4. 241 Downloaded by [University of Otago] at 14:42 16 March 2015 jane English so very slippery. In the early stages of pregnancy, abortion can hardly be compared to murder for psychological reasons, but in the latest stages it is psychologically akin to murder. Another source of similarity is the bodily continuity between fetus and adult. Bodies play a surprisingly central role in our attitudes toward persons. One has only to think of the philosophical literature on how far physical identity suffices for personal identity or Wittgenstein’s remark that the best picture of the human soul is the human body. Even after death, when all agree the body is no longer a person, we still observe elaborate customs of respect for the human body; like people who torture dogs, necrophiliacs are not to be trusted with people. 13 So it is appropriate that we show respect to a fetus as the body continuous with the body of a person. This is a degree of resemblance to persons that animals cannot rival. Michael Tooley also utilizes a parallel with animals. He claims that it is always permissible to drown newborn kittens and draws conclusions about infanticide. 14 But it is only permissible to drown kittens when their survival would cause some hardship. Perhaps it would be a burden to feed and house six more cats or to find other homes for them. The alternative of letting them starve produces even more suf­ fering than the drowning. Since the kittens get their rights second­ hand, so to speak, via the need for coherence in our attitudes, their in­ terests are often overriden by the interests of full-fledged persons. But if their survival would be no inconvenience to people at all, then it is wrong to drown them, contra Tooley. Tooley’s conclusions about abortion are wrong for the same reason. Even if a fetus is not a person, abortion is not atways permissi­ ble, because of the resemblance of a fetus to a person. I agree with Thomson that it would be wrong for a woman who is seven months pregnant to have an abortion just to avoid having to postpone a trip to Europe. In the early months of pregnancy when the fetus hardly resembles a baby at all, then, abortion is permissible whenever it is in the interests of the pregnant woman or her family. The reasons would only need to outweigh the pain and inconvenience of the abortion itself. In the middle months, when the fetus comes to resemble a per­ son, abortion would be justifiable only when the continuation of the pregnancy or the birth of the child would cause harms- physical, psy­ chological, economic or social- to the woman. In the late months of pregnancy, even on our current assumption that a fetus is not a per- 13 On the other hand, if they can be trusted with people, then our moral customs are mistaken. It all depends on the facts of psychology. 14 Op. cit., pp. 40, 60-61. 242 Downloaded by [University of Otago] at 14:42 16 March 2015 Abortion and Concept of a Person son, abortion seems to be wrong except to save a woman from signifi­ cant injury or death. The Supreme Court has recognized similar gradations in the alleg­ ed slippery slope stretching between conception and birth. To this point, the present paper has been a discussion of the moral status of abortion only, not its legal status. In view of the great physical, finan­ cial and sometimes psychologicc}l costs of abortion, perhaps the legal arrangement most compatible with the proposed moral solution would be the absence of restrictions, that is, so-called abortion “on demand.” So I conclude, first, that application of our concept of a person will not suffice to settle the abortion issue. After all, the biological development of a human being is gradual. Sewnd, whether a fetus is a person or not, abortion is justifiable early in pregnancy to avoid modest harms and seldom justifiable late in pregnancy except to avoid significant injury or death. March 1975 243 Downloaded by [University of Otago] at 14:42 16 March 2015




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