Abortion - 4

Legal Aspects of the Abortion Conflict
What is the legal status of the fetus (embryo, conceptus, and zygote)? Before the question is answered, one should pay some attention to the issue of the genesis of a legal system. Which ontological status do legal rights have? Where do they come from? Usually we accept the idea that legal rights do not ‘fall from the blue sky’ but are made by human beings. Other conceptions which had been provided in the history of human kind are: (i) rights rest on God’s will; (ii) rights rest on the strongest person; or (iii) rights rest on a specific human feature like a person’s wisdom or age. However, let us take the following description for granted: There is a legal community in which the members are legal entities with (legal) claims and legal addressees with (legal) obligations. If someone refuses the addressee’s legal obligation within such a system, the legal entity has the right to call the legal instance in order to let his right be enforced. The main question is whether the fetus (or the embryo, conceptus, zygote) is a legal person with a basic right to live or not and, furthermore, whether there will be a conflict of legal norms, that is a conflict between the fetus’ right to live and the right of self-determination of the pregnant woman (principle of autonomy). Is the fetus a legal entity or not?
a. The Account of Quasi-Rights
It was previously stated that the fetus as such is no person and that it seems unsound to claim that fetuses are persons in the ordinary sense of the notion. If rights are tied to the notion of personhood, then it seems appropriate to say that fetuses do not have any legal rights. One can object that animals of higher consciousness (or even plants, see Korsgaard 1996, 156) have some ‘rights’ or quasi-rights because it is prohibited to kill them without good reason (killing great apes and dolphins for fun is prohibited in most countries). Their ‘right’ not to be killed is based on the people’s will and their basic interest not to kill higher developed animals for fun. But, it would be wrong to assume that those animals are legal entities with ‘full’ rights, or that they have only ‘half’ rights. Thus, it seems reasonable to say that animals have ‘quasi-rights.’ There is a parallel between the so-called right of the fetus and the quasi-rights of some animals: both are not persons in the normal sense of the notion but it would cause us great discomfort to offer them no protection and to deliver them to the vagaries of the people. According to this line of argument, it seems sound to claim that fetuses also have quasi-rights. It does not follow that the quasi-rights of the fetuses and the quasi-rights of the animals are identical; people would normally stress that the quasi-rights of fetuses are of more importance than that of animals. However, there are some basic rights of the pregnant woman, for example, the right of self-determination, the right of privacy, the right of physical integrity, and the right to live. On the other hand, there is the existential quasi-right of the fetus, that is, the quasi-right to live. If the presumption is right that legal rights are tied to the notion of personhood and that there is a difference between rights and quasi-rights, then it seems right that the fetus has no legal right but ‘just’ a quasi-right to live. If this is the case, what about the relation between the existential quasi-right of the fetus and the basic legal rights of the pregnant woman? The answer seems obvious: quasi-rights cannot trump full legal rights. The fetus has a different legal status that is based on a different moral status (see above). On this view there is no legal conflict of rights.
b. The Argument of Potentiality
Another important point in the debate about the ascription of legal rights to the fetus is the topic of potential rights. Joel Feinberg discusses this point in his famous article “Potentiality, Development, and Rights” (1984, 145-151) and claims that the thesis that actual rights can be derived from the potential ability of having such rights is logically flawed because one is only able to derive potential rights from a potential ability of having rights. Feinberg maintains that there may be cases where it is illegal or wrong to have an abortion even when the fetus does not have any rights or is not yet a moral person. To illustrate his main argument – that rights do not rest on the potential ability of having them – Feinberg considers Stanley Benn’s argument which I slightly modified:
If person X is President of the USA and thus is Commander in Chief of the army, then person X had the potential ability to become the President of the USA and Commander in Chief of the army in the years before his rule. But, it does not follow that: The person X has the authority to command the army as potential President of the USA.
Thus, it seems incorrect to derive actual rights from the bare potential ability to have legal rights at a later time. It should be added that Benn – despite his criticism on the argument of potential rights – also claims that there are valid considerations which do not refer to the talk of rights and may provide plausible reasons against infanticide and late abortions even when fetuses and newborns are lawless beings with no personhood.