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The concept of personhood in moral philosophy (Part 4): Fetal sentience and personhood

Information: This is Part 4 in a series of articles looking at the question of when a fetus becomes a person (or attains personhood), and the arguments moral philosophers use to justify or reject this. In this section we consider the idea that the fetus is to be regarded as a person when it begins to display evidence of having sentience (i.e. the ability to sense things and feel pain).

Fetal sentience and personhood

Although there are many problems associated with trying to define the nature of personhood on the basis of certain fetal characteristics (i.e. having fingerprints), some moral philosophers suggest that there is evidence for recognising the fetus as a person when it becomes sentient:

'Society increasingly uses cessation of brain activity to define when life ends. Why not use the onset of brain activity to define when life begins?' (Easterbrook G., Abortion and Brain Waves)

In his essay Abortion and Brain Waves (2000), Gregg Easterbrook argues that as doctors performed within-womb operations, a late-term fetus appears to be 'aware of touch, responds to sound, shows a hormonal stress reaction, and exhibits other qualities associated with mental awareness'. He also argues that electroencephalogram (EEG) readings taken from babies born prematurely, show they already have complex brain activity comparable to those born full-term.

'Until recently most physicians scoffed at the idea of fetal “sentience”. Even newborns were considered incapable of meaningful sensation: until this generation, many doctors assumed that it would be days or weeks before a newly delivered baby could feel pain. That view has been reversed, with the medical establishment now convinced that newborns experience complex sensations. The same thinking is [now] being extended backward to the third trimester fetus.' (Easterbrook G., Abortion and Brain Waves)

3D ultrasound image of a 26 week old fetus 'smiling'

3D ultrasound image of a 26 week old fetus 'smiling' (Image source: caosblog.com, copyright unknown)

Some anti-abortionists claim that the presence of 'brain' activity in an embryo at six weeks is evidence of sentience, and therefore personhood, thus regarding its life as morally and legally significant from that moment. However, Easterbrook believes the medical evidence shows that this so-called brain 'activity' is nothing more than, 'random neuron firings as nerves connect – basically tiny spasms'. In fact, according to him it is only around the twenty-second to twenty-fourth week that the cerebral cortex becomes 'wired', and we begin to see evidence of more complex brain activity comparable to that found in newborns:

'From the twenty-second week to the twenty-fourth week, connections start to be established between the cortex and the thalamus, the part of the brain that translates thoughts into nervous-system commands. Fetal consciousness seems physically “impossible” before these connections form.' (Easterbrook G., Abortion and Brain Waves)

It is as late as the thirty-second week that the fetus finally begins to show evidence of having the more complex and organised brain patterns akin to newborns.

Of course, the fact that the fetus demonstrates greater brain activity as it matures is nothing significant. This is inevitably going to happen as it is a natural part of the growth cycle of zygotes, embryos and fetuses. However, what is significant (at least in the moral and legal sense), is that late-term fetuses appear to be demonstrating one of the specific human-related tests for personhood: the capacity for meaningful sensation, and that this (at the very least) has implications for our understanding of the moral and legal implications of abortion:

'Late term abortion is simply not the ground on which to stage [the anti-abortion][ defense – because unless the mother’s life is at stake, late-term abortion is wrong.' (Easterbrook G., Abortion and Brain Waves [Bracket mine])

In both the UK and USA late term abortions are prohibited, unless the mother’s life is at risk from the pregnancy.

However, although the fetus (normally) has increasingly complex brain activity as it matures, this still does not prove that it is a person. For to say that a fetus has complex brain activity in the twenty-fourth week, is simply to say that it has complex brain activity in the twenty-fourth week. If we want to go from this to saying that the fetus is also a person, this requires us to show why it it should be regarded as a person (which, as we have seen, is no easy task).

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Jeffrey Reiman's critique of the fetal sentience criterion

In his essay Asymmetric Value and Abortion (1999), Jeffrey H. Reiman questions the validity of the sentience test, arguing that it is only morally wrong to kill something (or someone) when they are aware of and care about their life, and are count on it continuing:

'Since fetuses are not conscious that they are alive, [they do not care about their life in any distinctive way]… there is no ground for according them the special protection to which we think human life (at some point) is entitled. Neither, of course, are infants conscious that they are alive. I claim in that case that the indirect valuing of respect is also at work; however, the respect is not aimed at the infants but those who love them…Respect for this love gives us a strong reason not to kill infants.' (Reiman J. H., Asymmetric Value and Abortion [Bracket mine])

Reiman's argument against fetal sentience is grounded on a particular definition of personhood; the ability for a being to care about its life. Of course, this not only rules out fetuses from being considered persons (which makes abortion morally and legally permissible), but, as he himself is aware, this creates a problems for infants as they are also 'not conscious that they are alive'. As such Reiman's personhood test rules out infants from being classified as people, which makes infanticide morally and legally permissible.

Reiman resolves this moral and legal conundrum by suggesting we should preserve the life of infants, because we respect the love they are being shown by other people. However, this solution undoes more threads in his argument, than it ties up loose ends.

Reiman's personhood test and fetuses

  1. Persons are conscious of being alive, and also care about their life continuing.
  2. A fetus is not conscious that it is alive, and does not care about its life continuing.
  3. Therefore a fetus is not a person.

Reiman's personhood test and abortion

  1. It is wrong to kill persons because they are conscious of being alive, and care about their life continuing.
  2. A fetus is not a person because it is not conscious that it is alive, and does not care about its life continuing.
  3. Therefore it is not wrong to kill a fetus (i.e. have an abortion).

Reiman's personhood test and infanticide

  1. It is wrong to kill persons, because they are conscious of being alive and care about their life continuing.
  2. An infant fails the personhood test because it is not conscious that it is alive.
  3. Although an infant fails the personhood test, we should not kill infants because people care that they remain alive.

Reiman's argument against infanticide is logically unsound, based on his 'anti-person test' for fetuses. Although he admits that infants fail the initial personhood test, and as such forfeit the 'special protection to which we think human life (at some point) is entitled', he clearly finds it hard to accept this. So he introduces the concept of respect into his argument. However, 'respect' is not a concept found in the basic test for personhood. Also, if Reiman is prepared to show respect to an infant, because other people (and not just the parents and close family and friends) love, respect and value its life, then why not suggest this applies to fetuses as well?

Fetus right-to-life privilege in light of Reiman's infant right-to-life criterion

  1. It is wrong to kill persons because they are conscious of being alive, and care about their life continuing.
  2. A fetus is not a person because it is not conscious that it is alive, and does not care about its life continuing.
  3. Although a fetus fails the personhood test, we should not kill fetuses because people care that they remain alive.
Thus the right-to-life privilege Reiman extends to infants can (logically), be extended to fetuses as well.

Reiman also offers several other arguments as to why we should respect and protect the life of infants:

  • The normal reaction is to love infants; it is one evolution has 'built into us'.
  • Human beings generally show love towards infants, and not just their own.
  • The love we show to infants is part of the process by which they develop into persons worthy of respect.
  • Love makes us want to protect infants and do all we can to ensure they survive.

Yet versions of these same arguments may be used to suggest why fetuses ought to be protected as well:

  • Pregnant women generally care about the fetus in their womb, and (as far as possible) will do all they can to nurture its growth by consuming the right things, and not consuming certain other things. This is a natural instinct evolution has built into them.
  • Other people (and not just the immediate family and close friends), are also interested in the mother remaining health for the sake of her unborn child. They regularly show interest and excitement in her pregnancy, as evidenced by the many questions about due-dates and the sex of the child.
  • Other people also show they respect pregnant women (and the fetus she is carrying) when they assist her or give up their seat for her up on a bus or train, or generally ensure they protect the area around her stomach so that the life inside her is not harmed or injured.

All this shows (contrary to what he thinks), that Reiman's special right-to-life privilege for infants can be used to show why the fetus is equally deserving of the 'special protection to which we think human life (at some point) is entitled', despite it failing his test for sentience (and therefore personhood).

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