Tooley on Infanticide and Potential Personhood

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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.

What the "After-Birth Abortion" Article Said (Part One)

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Those of you who follow the world of applied ethics will, no doubt, be aware of the recent furore surrounding the Journal of Medical Ethics’s decision to publish an article defending the moral permissibility of infanticide. The article is entitled “After-birth Abortion: Why Should the Baby Live?” and it’s by Alberto Giubilini and Francesca Minerva. Apparently, the authors have been threatened with violence and the editors of the journal have received a considerable volume of hate mail as a result of it’s publication. You can read about this, as well as the editor’s defence of the decision to publish over here, if you like.

Given the controversy, I thought it might be worth taking a look at the paper and figuring out what kind of argument it is making. But also, given the controversy, I should probably preface my attempt to do this with a few cautionary remarks.

First, I’m certainly very queasy about the argument, as I think most people are, but I’m not sure where I ultimately come down on this issue. I’m trying to approach this in as neutral a way that I can. Second, I have no problem with the decision to publish the article, believing it is perfectly acceptable to discuss these issues in a reasoned manner. And third, I find the controversy somewhat odd: I can understand why people might be challenged or offended by what the authors say, but the fact is that leading philosophers (Singer and Tooley) have been making similar arguments for a long time.

The editors raise this in their defence of the decision to publish and, ironically, this is the one thing that makes me question the decision to publish. As far as I can make out, there’s nothing particularly original about the article, Tooley (in particular) made an almost identical case a long time ago. But to say that Tooley’s case is “almost identical” is not to say that it is “identical”. The authors do present the argument in a different way and it’s my goal to figure out the logical structure of their reasoning.

As it turns out, this is not a particularly easy thing to do. While the article is a short easy read (just three pages), I struggled as I read it to figure out exactly where each section fit in to the central argument. I concede that my difficulties may stem from my desire to project my own understanding of what the argument should be onto the article, but I can only speak from my own perspective and from that perspective I do genuinely think the central argument is not as clearly presented as it could be. Thus, I dedicate this first post in the series to an attempt at reconstructing the central argument.


1. Some Notes on Terminology
Before I get down to the reconstructive task, I need to back-up for a moment and talk about terminology. As it turns out, terminology is important to understanding the central argument so this is not a complete distraction.

Giublini and Minerva state that they are defending the permissibility of after-birth abortion. But “after-birth abortion” is a term of their own invention. On the face of it, it seems oxymoronic: you can’t have an abortion after birth since an abortion is defined as the termination of a pregnancy. Aware of this problem, the authors still prefer to use the term “after-birth abortion”. Why so? They offer two reasons.

The first is that using the term “after-birth abortion”, rather than the more traditional “infanticide”, plays an important role in the framing of the debate. It is designed to direct our attention toward the parallels between aborting a foetus and killing an infant. The authors are quite explicit about this, writing:

We propose to call this practice “after birth abortion”, rather than “infanticide”, to emphasise that the moral status of the individual killed, is comparable with that of a fetus…rather than to that of a child. (pg. 2)

The second reason is similar to the first. It is to draw attention away from possible parallels with euthanasia (hence, they don’t call it “after birth euthanasia”). This is because the authors think that the case of euthanasia is significantly different to that of after-birth abortion. Euthanasia is usually justified on the grounds that death is in the best interests of the person being killed. But the justification of abortion is different: it can be justified on the grounds that it is in the best interests of persons other than the individual being killed. Indeed, as we shall see, part of the argument is that foetuses and newborn infants are not “persons” properly so-called, so they can’t have interests of this sort anyway.

Another terminological/conceptual point, worth mentioning at the outset, is the difference between saying something is “permissible” and saying it is “obligatory” or “supererogatory”. To say that an action is permissible, is to say that its performance attracts no moral blame or introduces no moral disvalue to the world. This is very different from saying that the action is something that would attract moral blame if it were not performed (i.e. is obligatory) or that it enhances the moral value of the world (i.e. is supererogatory). The authors are arguing only for the permissibility of after-birth abortion.


2. An attempt at Reconstructing the Central Argument
I complained in the introduction about the authors' lack of clarity in presenting their central argument. But what exactly do I mean by “central argument”. Basically, I use the term to draw a distinction between what I see as being the primary argument of the paper — i.e. the one that ends with the conclusion “Therefore, after birth abortion is permissible” or something pretty close to that — and the subsidiary arguments that are used to defend the key premises of that primary argument. One of the main problems with the paper, as I see it, is that the authors are (sort of) clear about their subsidiary arguments, but not about their central argument.

They do, however, offer several clues as to the nature of the central argument. One such clue — already highlighted — is that the central argument tries to draw some clear parallels between the pre-birth and after-birth situations. Roughly, the authors are trying to say that since the status of the foetus is similar to the status of the newborn infant, if pre-birth abortion is permissible so too must after-birth abortion be permissible. So their argument must work with at least one premise setting out the similarity between the two cases and one setting out the implications thereof. What might those premises look like?

Well, the authors start the article with this statement:

Severe abnormalities of the fetus and risks for the physical and/or psychological health of the woman are often cited as valid reasons for abortion… A serious philosophical problem arises when the same conditions that would have justified abortion become known after birth. In such cases, we need to assess facts in order to decide whether the same arguments that apply to killing a human fetus can also be consistently applied to killing a newborn human. (pg. 1)

And then later they give the following capsule summary of their position:

Therefore, we argue that, when circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. (pg 2)

This tempts me towards the following reconstruction of their central argument:

• (1) Abortion is permissible in a variety of circumstances (severe foetal abnormalities, damage to health of mother etc.).

• (2) If the circumstances permitting abortion arise after birth, then they would also permit after-birth abortion.

• (3) The circumstances permitting abortion do arise after birth.

• (4) Therefore, after-birth abortion is permissible.

The first two premises of this argument have some textual support, which is highlighted above. And there is an attempt to defend something like the third premise at the outset of the article. Thus, in paragraph three, the authors discuss a variety of factors that can lead to severe abnormalities that can actually be caused by the birthing process or are only capable of being discovered after birth.

But for all its textual support, I think this version is a poor fit for the central argument of the paper. The main reason for this is that when the authors get down to the actual business of defending the other premises — i.e. the premises defending the permissibility of abortion and the equivalent moral status of the newborn infant and the foetus — they don’t limit permissibility to just those cases involving harm to health. This is unsurprising, given the way in which abortion is most commonly defended: as a “free” choice, not something constrained by particular circumstances. This isn’t to say that a constrained version is implausible in general, just that it doesn’t seem to fit with the remainder of the article.

That leads me to pose an alternative formulation of the argument, a much broader and simpler one:

• (5) Pre-birth abortion is permissible.

• (6) If pre-birth abortion is permissible, then so too is after-birth abortion.

• (7) Therefore, after-birth abortion is permissible.

This formulation has the virtue of brevity and is a better fit with what the author’s ultimately say, but it is still not quite right. For one thing, this formulation may lead to an unfortunate straw-manning of the author’s argument. What do I mean by this? Well, since the main argumentative thrust of the article is framed in terms of the analogy between the moral status of the pre-birth and post-birth individual, one may end up thinking that the authors offer no defence of premise (5) and simply assume it to be true. Indeed, some people seem to be viewing the argument like this already and looking on it as a potential reductio of the permissibility of abortion. (It could also be construed as a slippery slope argument against abortion.)

But I don’t think that’s fair to the authors since they do offer something like a defence of premise (5), only their defence is explicitly not limited to the pre-birth scenario. Instead, it is a general defence of the permissibility of killing non-persons, which is then defended against an various counterarguments. That suggests that this might be the better formulation of the central argument:

• (8) It is permissible to kill non-persons (even if they are potential persons).

• (9) Neither the foetus nor the newborn infant are persons.

• (10) Therefore, pre-birth and post-birth abortions are permissible.

This, I think, is the best version of the central argument. It does justice to the authors’ attempt to argue for the equivalent moral status of the foetus and the newborn infant (in premise 9), and so grants them their framing of the debate. But it also allows them to avoid the straw man discussed above and offer some explicit defence of the permissibility of killing non-persons (premise 8). I’ll talk about how they do both of those things in part two.