h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

In response to Xanatic

"It does seem to me that the ruling that a foetus is not covered under the right to life makes it seem like the foetus is kind of worthless. So if somebody hit a pregnant woman in the stomach causing her to loose her child, should he not be considered guilty of murder of some kind?"

There are a number of problems with considering a foetus as having a 'right to life'. Probably the most serious is that it would make abortion illegal. Now, many people do think that abortion is wrong, but as Azahar has made clear, it's possible to think that abortion is wrong yet not think that it ought to be illegal. Some people think this because they respect the views of others, but I just as many are opposed to making abortion illegal because of the what would happen as a result. Abortions wouldn't stop happening, but it wouldn't be regulated or audited to meet high medical standards. Apart from the danger of back street 'clinics', there's the risk of desparate women trying to bring about an abortion by themselves, and great harm could be caused by this.

A second problem is deciding at what stage a foetus has a right to life. I think it's easy to have a sense that a foetus at eight months might be nearly a human being, but it's much less clear whether a collection of eight cells would have a right to life, and that someone who (say) assaulted a woman in the very early stages of pregnancy would be a *murderer* if the embryo was destroyed.

But a more important question that I'd like to address is Xanatic's worry that this ruling 'makes it seem like the foetus is kind of worthless.' Others have expressed this concern in this thread too.

It doesn't follow from a foetus not being a person with a right to life that it is worthless and entitled to no protection at all. This is a false dichotomy, and it's one that commonly appers in these kinds of arguments (including in the first post of this thread). It's a common form of fallacy - you must believe A as I do, or you must believe Z which is obviously wrong/immoral/absurd - which ignores a range of other possible defendable and distinguishable positions in favour of presenting a choice between two extremes.

One possible view to have on this issue is that a foetus has a right to life. Another view is that a foetus has no intrinsic value at all. But there is room for a wide range of other views and moral statuses in between. Personally, I think that a foetus has value in that it is a potential human and a potential person, but that potentiality does not entail treating the foetus *as if* it had fulfilled that potential. Such views allow a foetus to have a moral value, but not the same moral value as a person.

Quite how the *law* should deal with this I'm not sure. I share the intuition that there's something else that's wrong with assualting a pregant woman and causing her to lose the foetus that isn't covered by charges of assualt and GBH (grievous bodily harm), but this intuition is not best expressed by giving the foetues the legal right to life.

No Otto, I`m not trying to say there are only those two options. But saying a foetus has no right to life, does make it seem like they are saying it has no right to protection under the law. I could see the problem if the mother had given her permission to it, but we are talking about a doctor who against her will killed her foetus. With this ruling I get the feeling they are saying you can basically do what you want with a unborn foetus, it has no legal rights.

<>

Wow, that's quite a leap there. I'm quite curious how you got there from a ruling that simply upheld the current laws.


az

>> With this ruling I get the feeling they are saying you can basically do what you want with a unborn foetus, it has no legal rights.

No-o-o-o. It says that foetuses are not included in the legislation which was used to base the case on. They aren't included in animal rights legislation either, or in legislation about grain-imports.

It is important to apply the law accurately - even if the results are morally questionable. If enough people consider the results to be morally questionable, then the law can be changed, but undermine the law and you have no common basis for any kind of transaction other than the most personal.

B

What this ruling says is that foetuses do not have a right to life as defined under section 2 of the European Convention on Human Rights.

What it does not say is that a foetus is worthless and can be treated in any way that people wish.

This is what I mean by a false dichotomy - saying that foetuses do not have a right to life does not entail believing that they are worthless. There are other ways of providing legal protection that assigning the right to life.

Remember that this case is not about whether the doctor is guilty or not, but about what he is guilty *of* (assuming that the mistake was his fault - it was an accident, not a deliberate act of abortion).

Having legal rights and having protection under the law is not the same thing. Cats have protection under the law (i.e. there are certain things that it is illegal to do to cats), but they do not have legal rights and certainly not an Article 2 right to life. Foetuses do have protection under the law in countries where there are upper time limits on selective abortions, which I think is nearly all of them. But foetuses do not need legal rights to have this protection. A state can impose all kinds of restrictions on what can legally be done to a foetus, but need never resort to assigning rights to life.

I'm not neccesarily saying that cats and foetuses have the same moral status - my point here is just that there are other ways to provide legal protection to entities that we think have value without resorting to right to life.