Tooley on Infanticide and Potential Personhood

Given that Giublini and Minerva’s recent article on after-birth abortion was little more than a restatement of Michael Tooley’s 1972 article “Abortion and Infanticide” (with maybe one minor difference), I thought it might be worth briefly revisiting Tooley’s argument. Now, I don’t wish to revisit the whole thing since it is a long and complex piece (which he gave a book-length elaboration and refinement to in 1983), but one aspect of it seems to warrant reconsideration in light of the recent discussion: his treatment of the potential personhood objection.

Those of you who read my analysis of the “after-birth abortion” article will be familiar with Tooley’s central argument. To give it the briefest of summaries, the argument is roughly as follows: only persons have a right to life; newborn infants are not persons; therefore, newborn infants do not have the right to life; therefore, it is permissible to kill newborn infants. Whatever about the merit of the personhood criterion, one typical objection here is that even if newborn infants are not yet persons, they are on the way to becoming persons, and that has to count for something. This is the potential personhood objection.

I looked at Minerva and Giublini’s response to this objection in my earlier posts, now I want to consider Tooley’s response, which is quite short but, I think, rather interesting.


1. Tooley on Why is is Permissible to Kill a Potential Person
Tooley’s response to the potentiality objection centres on two key premises. The first claims that there is no general duty to act so as to turn potential persons into actual persons. The second claims that there is no real moral difference between acts and omissions. From the conjunction of these two premises is drawn the conclusion that there is no prohibition on taking active steps to prevent a potential person from becoming an actual person. From which it follows it is permissible to kill a potential person. Let’s go through this more carefully.

First up, let’s consider the idea of personhood. Tooley defines a person as any being with the concept of itself as a “continuing subject of experiences”. In other words, as a being that is sentient, has a concept of self and has a concept of this self existing through time. He maintains that only beings with this kind of self-concept have a right to life. No doubt, that’s something you might like to critique, but taking it onboard for now, what does it say about potential persons? Tooley seems to understand “potentiality” in terms of counterfactual conditions. Roughly, he seems to think that a being has the potential to become a person if, some plausible possible world, it could have become a person.

It’s not clear exactly which concept of possibility Tooley is working with here. It clearly can’t be conceptual or logical possibility, that would be much too loose a standard. After all, there’s nothing logically contradictory in the notion of a possible world in which desklamps can turn into persons, but that surely doesn’t mean that my desklamp in this world is a potential person? So it must be a more constrained concept of possibility that's at play.

Reading between the lines, I think Tooley must be working with some combination of physical and technological possibility. In other words, he would maintain that if it were physically and technologically possible to turn my lamp into a person in this world, it then counts a potential person. I glean this by reading between the lines of the thought experiment Tooley uses to support the first premise of his argument.

The thought experiment is the following:

Personhood Serum: Suppose that scientists develop a serum that, when injected into a cat, will cause them to develop the mental faculties necessary (and sufficient) for becoming a person. This means that the cat is now a potential person. Do we have an obligation to inject all the cats we see with the serum?

Tooley’s intuition, no doubt shared by many, is that even though every cat is now a potential person, we have no duty inject them with the serum. In other words, there is no duty to take active steps to turn a potential person into an actual person. This is the first premise of Tooley’s argument. Note, given traditional deontic schemes of opposition, the corollary of this would be that it is permissible to fail (i.e. it is omissible) to take steps to turn potential persons into actual persons. Given the subsequent steps in the argument, this correlative formulation of the premise might be more sensible.

Moving on then to the second premise of Tooley’s argument. As you recall, this is the claim that there is no moral difference between failing to do something (omitting) and actually doing something (acting). This is the so-called “symmetry” principle and it is certainly controversial. For instance, many people hold that there is a significant moral difference between killing and letting die, which is based on the acting/omitting dichotomy.

Nevertheless, there are ways in which to defend the symmetry principle. One is to rely on James Rachel’s classic Jones/Smith thought experiment (note this dates from after Tooley’s article):

The Baby and the Bathtub: Smith enters the bathroom of his young nephew while the nephew is taking a bath. Knowing that he stands to gain a substantial inheritance upon the nephew’s death, Smith drowns the child. Jones is in a similar predicament with his nephew so he also decides to drown the nephew. However, when Jones enters the bathroom he finds that the nephew is already drowning so he simply stands by and watches as events unfold. Are Smith and Jones equally culpable?

The suggestion here is that Smith and Jones are equally culpable: they both had the same intent and both allowed their intentions to become a reality. As a result, this thought experiment is thought to provide support for the symmetry principle. And so Tooley has his second premise.

What now follows? Well, if its true it is permissible to fail to take active steps to turn potential persons into actual person, and if it is true that there is no moral difference between actively doing something and failing to do something, then wouldn’t it follow that it is permissible to take active steps to prevent potential persons from turning into actual persons? And wouldn’t that amount to the same thing as saying that it is permissible to kill a potential person.

In other words,

• (1) It is permissible to fail to take steps to turn a potential person into an actual person.

• (2) There is no moral difference between failing to something and actually doing it.

• (3) Therefore, it is permissible to take actual steps that prevent a potential persons from turning into an actual person.

• (4) Therefore, it is permissible to kill a potential person.

Now, to be clear, I’m not entirely sure about the validity of this argument, but I can’t quite put my finger on the reasons for my lack of certainty, so perhaps it would be best to consider its soundness.



2. Challenging Tooley’s Argument
Obviously, there are two ways to challenge the soundness of Tooley’s argument. The first is to challenge the principle he draws from the Personhood Serum example. The second is to challenge the symmetry principle. In his recent book on the ethics of abortion, Christopher Kaczor mounts both sorts of challenge. I’ll briefly outline what he has to say here.

Kaczor challenges premise (1) in two different ways. The first is to argue that the potentiality objection is flawed in the first place and so it does not even matter whether premise (1) is true or false. The reason for this is that, according to Kaczor, most abortion opponents — at least, within the philosophical community — do not base their opposition to abortion on the potential status of the foetus (or, indeed, the newborn), rather, they base their opposition to abortion on the actual status of the foetus/newborn. They argue that this status is what gives the foetus/newborn a right to life. Of course, this is to reject Tooley’s personhood criterion and if we were to consider the relevant arguments in favour of the actuality principle, we would be drawn away from the current topic. They are in Kaczor’s book, if you are interested.

But let’s just assume that potentiality is important, does the personhood serum case, which Tooley uses to support premise (1), really establish what needs to be established? Kaczor argues that it does not. This is because Tooley fails to distinguish between two varieties of potentiality. They are:

Passive Potentiality: Where the entity does not have any internal system or capacity to develop the actual status but instead requires outside intervention to develop the actual status.

Active Potentiality: Where the entity does have an internal system that allows it to develop the actual status.

Kaczor argues that the cat in Tooley’s thought experiment only has passive potentiality, whereas the newborn infant has active potentiality. What difference does that make? Well here’s what Kaczor has to say about it:

If functioning rationally [i.e. as a person] is the benchmark of respect, a being actively developing toward functional rationality (the human fetus [sic]) deserves a greater respect than a being with the passive potential to become a being actively self-developing towards functional rationality…

Unfortunately, that’s all he says about this important issue and I’ll be damned if I can detect anything close to an argument, as opposed to a mere assertion, in what he has said. One problem with the assertion is that it’s not really that obvious that the newborn infant has active potentiality. Although there is a biological developmental process that unfolds in a particular way, this process is constantly assisted by outside forces (e.g. parents providing care and nourishment). Is that really all that different from passive potentiality?

Furthermore, as some author’s have pointed out (McMahan, 2007) some infants definitely do not have the active potentiality to develop into persons. These are infants with severe congenital disorders. Kaczor seems to accept the counterexample here, but then responds by pointing out the importance of species-membership and flourishing relative to a species-typical ideal. Now the moral importance of species membership is one of Kaczor’s main arguments in his anti-abortion book, but it’s not something I can hope to explore here.

Even if Kaczor is a bit weak in his critique of premise (1), there’s always his critique of premise (2) to fall back on. What does he have to say about this? Several things, as it turns out. First, he notes that the truth of the symmetry principle is not self-evident. The Jones/Smith example provides one intuitive scenario in which symmetry seems to hold, but there are others which support asymmetry.

Second, there seems to be an important moral difference between failing to initiate a causal process, on the one hand, and intervening to prevent a causal process from continuing, on the other. The former may attract no moral blame, but the latter might. For example, you probably have no general obligation to promise to help your friend move into his new house, but if you do make the promise and are assisting them in carrying their grand piano into the house, you’d probably be doing something wrong if you suddenly decided to back out of the promise.

Third, Kaczor suggests that there is a moral difference between refraining from making someone better off, on the one hand, and positively acting so as to make them worse off, on the other. This difference is probably highlighted in the previous example anyway, but it seems less persuasive in this context. Why so? Because one of the big questions here is whether you actually make a non-person worse off by ending their lives. Kaczor is aware of this problem and promises to give an answer later in the book. Again, I won’t get into it here.

That then brings us to the end of this post. As I said at the start, the goal was mainly to set out Tooley’s response to the potentiality objection and hint at some possible criticisms of it. I appreciate that many rabbit holes have been opened but not followed down, but that, unfortunately, is the nature of this debate.