Defenders of the permissibility of feticide commonly argue that killing an organism is not homicide unless the organism’s brain has developed enough for it to acquire sentience: the capacity for consciousness and the ability to perceive pleasure and pain. In this paper I critique one of the more sophisticated versions of this argument, proposed by David Boonin in A Defense of Abortion. First, I sketch some prima facie problems faced by any appeal to sentience. Second, I examine Boonin’s attempt to defend an appeal to sentience against these problems by contructing a modified future like ours (FLO) account of the wrongness of killing. I argue that Boonin’s modified FLO defence of sentience fails. Both his argument for the modified FLO account and his application of this account to feticide rest on ad hoc arbitrary manoeuvres, manoeuvres which mean that the modified FLO account is a plausible criteria for the right to life only if one already grants that feticide is not homicide.
Common in literature defending the permissibility of feticide is the contention that killing an organism is not homicide unless the organism’s brain has developed enough for it to acquire sentience: the capacity for consciousness and the ability to perceive pleasure and pain. In this paper I criticise perhaps the most sophisticated version of this claim—that proposed by David Boonin. I first sketch some prima facie problems faced by any appeal to sentience, followed by an examination of Boonin’s attempt to defend an appeal to sentience against these problems. I argue that his defense fails.
Some terminological issues need to be noted. I use the term fetus in a technical sense to refer to the product of human conception from eight weeks gestation until separation from the mother at birth. From birth, I refer to this organism as an infant. Prior to becoming a fetus at eight weeks gestation, I use the term embryo. Feticide means the killing of a fetus, infanticide the killing of an infant. Finally, when I talk of a fetus as a human being, by ‘human being’ I mean a being, the killing of which constitutes homicide. The term ‘human’ is ambiguous and has different definitions in different contexts, whether biological, legal, sociological or moral. When I discuss the moral question of whether feticide is unjustified homicide, I am not interested in whether a fetus falls into any given biological or sociological definition of human. I want to know whether it is one of the beings that the rules against homicide, or the rules allowing homicide in various circumstances, covers.
The Appeal to Sentience: Some Initial Problems
Common in the literature on feticide is the argument that killing an organism is not homicide unless the organism’s brain has developed enough for it to acquire sentience, the capacity for consciousness and the ability to perceive pleasure and pain. Despite its pervasive appeal, there are some prima facie problems with such an account. In chapter 3 of A Defense of Abortion, Boonin reviews various accounts and notes that they all fail for similar reasons. Boonin notes that those who attempt to ground humanity in the amount of brain development an organism has undergone face a dilemma: “Any appeal to what a brain can do at various stages of development would seem to have to appeal to what the brain can already do. Or to what the brain has the potential to do in the future.”1
Either option leads to problems for a defender of the permissibility of feticide who does not also want to endorse infanticide. This is because “by any plausible measure dogs, and cats, cows and pigs, chickens and ducks are more intellectually developed than a new born infant.”2 Suppose, then, one takes the first horn and appeals to what the brain can already do. However, unless one wishes to affirm that cats, dogs and chickens are human beings, “appeals to what the brain can already do” will “be unable to account for the presumed wrongness of killing toddlers or infants.”3
Suppose, then, one takes up the second horn of the dilemma and appeals to “what the brain has the potential to do in the future.”4 Boonin notes that this will entail that feticide is homicide. “If [such an account] allows appeals to what the brain has the potential to do in the future, then it will have to include fetuses as soon as their brains begin to emerge, during the first few weeks of gestation.”5
The challenge for a person who wants to limit homicide to include only sentient beings is:
[T]o identify a reason for holding that the potential of a human brain is morally relevant after the fetus has organized electrical activity in its cerebral cortex [when a fetus begins to acquire sentience] but is not morally relevant before that point, a reason that is not itself merely an ad hoc device for reaching the conclusion the defender of [the sentience criterion] wishes to reach.6
Boonin’s Defence of Sentience
In A Defense of Abortion, Boonin attempts to circumvent the above difficulty by making two distinctions. The first is between an occurrent and dispositional desire, “A desire of yours is occurrent if it is one you are consciously entertaining.”7 Boonin gives an example: “If this discussion is striking you as tedious, for example, then you may right now be experiencing an occurrent desire to put this book down.”8 A dispositional desire is “a desire you do have right now even if you are not thinking about it right at this moment.” He states, “I suspect, for example, that when you began to read this sentence you really did want to live beyond tomorrow evening, even though it is unlikely that you were entertaining just that desire consciously as you began to read this sentence.”9
The second distinction is between an actual and an ideal desire. An actual desire is one “that you in fact have.”10 Boonin notes that a person’s actual desires can be formed under conditions where they “lack accurate information”11 or “under duress”12 or while they are “upset”13 and “not reflecting on the situation calmly.”14 Ideal desires are the desires we would have had were we not subject to various distorting influences of this sort; the desires we would have had were we calm, rational and accurately informed.
These two distinctions avoid the common counter-examples. An unconscious person does not have an actual desire, but he or she has a dispositional ideal, a desire to live. Similarly, an infant, while lacking an actual desire to live, would desire to live if it were rational and fully informed.
Understanding desires as ideal dispositional desires as opposed to actual occurent desires, Boonin goes on to suggest, “Killing people like us is the severe wrong that it is not just because it thwarts a desire that we have, but because it thwarts a particularly important desire that we have; the desire to preserve a future like ours.”15 This understanding of what makes killing wrong leads him to give the following account of a right to life: “If an individual P has a future-like-ours and if P now desires that F be preserved, then P is an individual with the same right to life as you or I.”16
By ‘a future like ours’ (FLO), Boonin means a future existence like that of a typical human person such as you or I. FLO constitutes the “experiences which lie ahead of a typical human being.”17 Boonin refers to this as “the modified future like ours account,” which he uses to argue that a fetus does not have a right to life and hence killing a fetus is morally permissible. A pre-sentient fetus, Boonin maintains, lacks ideal desires to preserve FLO and consequently lacks a right to life. If one adds that the rule against homicide protects only beings with a right to life, a position Boonin appears to affirm, it follows that killing a pre-sentient fetus is not homicide.
Much could be said about Boonin’s reasoning here,18 so I will limit myself to one line of criticism. Boonin himself acknowledges that any attempt to ground a right to life in sentience must “identify a reason” for holding this position. Further, this reason must not be “merely an ad hoc device for reaching the [desired] conclusion,” hence, the first question one must ask is what reasons Boonin gives for adopting the modified FLO account. Below I argue that he does not provide such reasons and under examination, his position does appear to be an “ad hoc device for reaching the [desired] conclusion.”
Boonin’s Argument for the Modified FLO account
Boonin develops his argument for the modified FLO account as part of a critique of Don Marquis’s widely anthologised essay, “Why Abortion is Immoral.”19 In this article Marquis contends that “the best explanation for the wrongness of killing is that killing deprives us of our futures of value.”20 Where a future of value consists “of all of the goods of life we would have experienced had we not been killed.”21 Marquis’s account has the implication that feticide is homicide. “Fetuses have futures like ours, for their futures contain all that ours contain and more. Therefore, (given some defensible assumptions and qualifications) abortion is seriously wrong on almost all occasions.”22
Boonin’s approach is to sketch an account of the wrongness of homicide that both explains the wrongness of killing human beings in a series of cases better than Marquis’s account does and that, according to Boonin, entails that feticide is not homicide. Before criticising this argument, it is worth noting at the outset that even if it is substantially correct, it would not provide grounds for accepting Boonin’s position. The fact (if it is a fact) that his account is better than Marquis’s account does not show that Boonin’s account is correct or that it is the best theoretical account of the wrongness of killing. It merely shows it is better than one other account, that of Don Marquis. The fact that it is better than one account does not mean it is better than all accounts.
Boonin’s argument provides an opponent of feticide with reasons for opposing feticide only if the proponent accepts Marquis’s account. If one argues against feticide without embracing such an account, his argument has little or no cogency. Despite this, it is worth examining whether Boonin is successful in showing his account is better than that of Marquis. Boonin contends it is because it can account for the wrongness of killing in various cases in a manner that is (a) more parsimonious than Marquis’s account; and, (b) more salient. In addition to explaining why it is wrong to kill in these cases in a superior manner, he argues, (c) Marquis account is subject to counter examples that his account is not subject to. In Boonin’s Defense of the Sentience Criterion: A Critique Part II, I will examine each of these three contentions.
1 David Boonin, A Defense of Abortion (Cambridge: Cambridge University Press, 2003), 125.
2 Boonin, A Defense of Abortion, 121.
6 Ibid., 122.
7 Ibid., 122.
10 Ibid., 123.
11 Ibid., 71.
13 Ibid., 72.
15 Ibid., 126.
16 Ibid., 64.
17 Ibid., 56.
18 For example, Boonin’s claim that a fetus lacks ideal desires follows only because he chooses to define ideal desires as “simply the content of actual desires corrected to account for the distorting influences of imperfect circumstances.” However, Thomas Carson in Value and the Good Life (Notre Dame IN: Notre Dame University Press, 2000), 222-239, has offered powerful criticisms against defining ideal desires in this fashion.
19 Don Marquis, “Why Abortion is Immoral,” in The Abortion Controversy: 25 Years after Roe v Wade, A Reader, ed. Francis Beckwith & Louis Pojman (Belmont, CA: Wadsworth Publishing Company, 1998), 339-355.
20 Don Marquis, “Abortion Revisited,” Oxford Handbook of Bioethics, ed. Bonnie Steinbock, (New York: Oxford University Press, 2007), 399.
23 Boonin, A Defense of Abortion, 63.
Boonin’s Defense of the Sentience Criterion: A Critique Part II
Some Thoughts on Human Embryonic Stem-cell Research
Is Abortion Liberal? Part 1
Is Abortion Liberal? Part 2
Sentience Part 1
Sentience Part 2
Abortion and Brain Death: A Response to Farrar
Abortion and Capital Punishment: No Contradiction
Imposing You Beliefs Onto Others: A Defence