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The problems with utilitarian conceptions of personhood in the abortion

debate

Article  in  Journal of Medical Ethics · April 2011

DOI: 10.1136/jme.2010.039859 · Source: PubMed

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 Essay

The problems with utilitarian conceptions of

personhood in the abortion debate
Daniel R A Cox

Correspondence to ABSTRACT Tooley incorporates the Lockeian idea of the

Daniel R A Cox, University of necessity for a person to be able to recognise him/
This article seeks to explore utilitarian conceptions of
Bristol, Faculty of Medicine and
Dentistry, 39-41 St Michaels personhood which for a long time have been employed herself as the same entity over time. He perceives
Hill, Bristol BS2 8DZ, UK; as part of a rational moral justification for the termination rights as the safeguard of our desires. Rights, for
dc5771@[Link] of pregnancy. Michael Tooley’s desires-based rights Tooley, exist as the result of moral obligations that
approach to personhood presented in his work Abortion beings place on others to avoid others from
Received 25 August 2010 and Infanticide is considered and, it is argued, is found infringing on their desires. Therefore, for a right to
Revised 3 November 2010
Accepted 10 December 2010 wanting when one considers unconscious adults and exist, the thing that it allows for or protects must
Published Online First their ability to desire life. This article will offer that be desirable. A right for an unwanted thing is
26 January 2011 unconscious sleeping individuals only have the potential counterintuitive, for why would a being claim such
to regain the capacity to value their own life and, as a right?
such, under Tooley’s formula for personhood, temporarily Tooley also makes the point that a ‘right to life’ is
lose their status as a person. Following this, John a misleading phrase. His explanation for this is
Harris’s utilitarian views on the status of the sleeping that, in a hypothetical situation where one could
adult will be considered and deconstructed to show that, reprogramme a person’s brain with ‘memories (or
like Tooley, his ascription for personhood falls down at rather, apparent memories), beliefs, attitudes and
the sleeping adult. This article illustrates that utilitarian personality traits’ that were completely different
conceptions of personhood leave the sleeping adult from the original person’s own psychological
human devoid of the rights of a person and hence render background, most would consider ‘that an indi-
the value of this consquentialist theory, with regard to vidual had been destroyed’.3 Yet the being would
the idea of personhood, in severe doubt. The paper still be living, so a right to life would not have been
argues that utilitarian conceptions of personhood do little breached but the right ‘of a subject of experiences
more than obstruct the worthy debate over the morality and other mental states to continue to exist’ would
of abortion. have been breached. Hence, Tooley suggests that
the latter right is a more accurate description of the
ultimate right ascribed to a person.
Tooley states that ‘the desires a thing can have
This article will discuss and critique justifications are limited by the concepts it possesses’.3 His
for the termination of unborn humans that rely on argument follows the line: if one does not have
utilitarian conceptions of personhood. A detailed a concept of what a thing is, how could one
discussion of Michael Tooley’s desires-based rights possibly desire this thing? He argues that an
approach to personhood is considered first and unborn child (this argument also stretches to
a critique offered. This critique of Tooley’s young infants) cannot possibly have a desire for
approach will also encroach on and criticise John continued life or for continued existence as
Harris’s formula for the ascription of personhood, a thinking being, as an unborn child does not know
based on an individual’s ability to value his or her what life is and hence cannot desire it or desire for
own life. It will be argued that the result of it to continue. An unborn infant also (arguably) has
employing their utilitarian conceptions of the no concept of the past or future and hence cannot
person is that the sleeping adult no longer has see itself as a consistent entity existing over
a right to life, thus leaving their utilitarian timeda concept that is necessary for formulating
conceptions of personhood in turmoil. plans other than those which exist to be exercised
Michael Tooley considers the ascription of at the presentdso an unborn child cannot have any
personhood to confer a ‘(serious) right to life’ on desire other than its immediate physiological well-
a being.1 He rightly divides the right to life away being. As an unborn child and a very young infant
from the other rights that may be conferred on lack these essential criteria for the right to
a being; although non-persons may not be granted continued life, Tooley sees both abortion and
a right to life, they may very well have rights in infanticide as morally permissible actions.
regard to other considerations. Tooley’s commitment to this doctrine of
Like Kant, Locke and others before him, Tooley a desires-based right to continued existence clearly
ascribes to a performance theory for the endow- has its roots in the utilitarian tradition of morality.
ment of personhood on a being. His criterion for The underlying consequentialist reasoning behind
personhood is: his theory is evident; Tooley sees it as permissible to
An organism possesses a serious right to life only if it terminate the lives of infants and unborn humans
possesses the concept of a self as a continuing who lack a concept of the self as a ‘continuing
subject of experiences and other mental states, and subject of experiences and other mental states’ as
believes that it is itself such a continuing entity.2 their deaths will not increase the overall pain in

318 J Med Ethics 2011;37:318e320. doi:10.1136/jme.2010.039859

 Essay

society (as long as they are killed painlessly). He also calculates only have the potential to regain their dispositional knowledge
that, by committing infanticide or aborting certain humans, ‘the of the concept of continued existence once they have awoken.
happiness of society could be sufficiently and justifiably They, like the unborn human, have the potential for the
increased’.4 If a being is not a ‘continuing subject of experiences conceptual capacity to desire continued existence. The uncon-
and other mental states’, its death will not reduce the overall scious individual does not have a usable conceptual capacity of
happiness or pleasure itdor society as a wholedexperiences continued existence to desire it while he/she is unconscious.
and, hence, from a utilitarian viewpoint, its death would not be There is no valid moral reason that can be perceived here as to
an immoral outcome. why an unusable conceptual capacity is of more use or of more
A problem that can be extrapolated from Tooley’s line of valid moral importance than a complete lack of conceptual
argument is that some competent adult humans might fall capacity.
under Tooley’s standard for the ascription of personhood for Hence, the only difference between the sleeping human and
periods of timedfor example, sleeping adults, adults suffering the unborn human is that the sleeping human had the concep-
from depression or those who have been indoctrinated. A tual capacity to understand what a continued existence entails
sleeping adult, for example, may not have the ability to before he/she was unconscious while the unborn human has
consciously desire life; would this therefore leave the adult never had this capacity. In response to criticism of his theory on
with no right to life and hence make their murder morally abortion and infanticide, Tooley modified his criteria for the
permissible? ascription of a right to continued existence (personhood) in
Tooley pre-empts this flaw in his theory and then attempts to a book that followed his paper (with the same name), Abortion
adjust it so that the individuals in the situations above would be and Infanticide. He added the clause that a being has a right to
incorporated. He is, however, unsure how to do this and simply continued existence if there was ‘at least one time at which it
states that: possesses the concept of continuing self or mental substance’6 to
differentiate between the position of the unborn child and the
. an individual’s right to X can be violated not only when he
temporarily unconscious person. Tooley here is incorporating an
desires X, but also when he would desire X were it not for one of the
‘interests-view’ into his theory with regard to how the sleeping
following: (i) he is in an emotionally unbalanced state; (ii) he is
temporarily unconscious; (iii) he has been conditioned to desire the
individual should be treated. He is wrong to do so as the person
absence of X.5 whose interests and desires were present before falling asleep is
not available to hold them once he/she falls asleep. There is only
Tooley takes great care to point out here that this would-be the potential for this person to regain consciousness and hence
desire for X is not a could-be desire for itdthat is, one must bring his/her interests onto the moral playing field.
already have the concept of X, and hence the capability to desire For example, a dead person will probably have had the concept
it, for this acknowledgement of a would-be desire for it to apply. of continued existence or mental substance at some point in the
Tooley then states that this idea therefore does not lay waste to past but (like the sleeping person) is no longer capable of holding
the rest of his theory as an unborn human does not have the these cognitive abilities in his/her current state. Tooley himself
conceptual capability to desire a right to continued existence in states that capacity should be regarded in the narrower sense in
the way an indoctrinated person who decides, as a result of this situationdas the possession of concepts one does or ‘does
their conditioned desire, that they no longer desire continued not now have’ (emphasis added).7 The only difference between
existence, does. the dead person and the sleeping one is that the dead person is
However, Tooley has missed a gap in his theory at this point incapable of conceptualising his/her own continuing self for the
for what he states does make rational sense to a degree: a person rest of eternity whereas the unconscious individual will or may
who has been indoctrinated resulting in their non-desire for regain this capability after something else has happeneddthat is,
continued existence may not desire life but has the conceptual they have woken up. This is why they only have the potential
capacity available to them for that desire. They have the concept capacity to conceptualise themselves as a continuing entity.
of what continued existence is and arguably would desire After Tooley’s modification of this theory, the sleeping indi-
continued existence had they not been indoctrinated. In this vidual still only has a potential to regain capacities or be the
situation, Tooley is successful in differentiating the would-be subject of interests. He still hasn’t solved the problem.
desires of an indoctrinated individual from the potential for It could be pointed out that the sleeping human will regain
a desire for continued existence that an unborn human may his/her capacity for conceptual awareness of what continued
possess. However, an unconscious human may have had the existence consists after a mere temporary convalescence whereas
conceptual capacity to draw upon, with which to form a desire an unborn human may take 9 months gestation until birth and
for continued existence, before they fell unconscious but, unlike a further year or so to develop it. This is an invalid method of
an indoctrinated person, they cannot draw on this concept of discrimination against the unborn human. The (little known
a continued existence while they are unconscious. The uncon- about) time frame over which one develops the potential to
scious individual has the dispositional knowledge/intellectual achieve this capacity is a morally invalid distinction to draw and
prowess to conceptualise a continued existence but cannot draw define how they are treated. Unconscious adults would not
on it in a usable form while he or she is asleep. Hence, the forfeit their personhood if it were known that it would take
argument that Tooley expounds is available for the previous them months or years to gradually regain capacity to become
cases but not the unconscious being. fully self-aware.
What Tooley is in effect implying is that these individuals will Others might argue that, while neither an unborn human nor
regain the ability to draw on their conceptual capacity (of what a sleeping adult has a functional capacity to conceptualise
a continued existence is) at some point in the future. themselves as continuing entities and form rational desires,
Tooley has fallen into the exact pitfall he wished to avoid by a sleeping adult may be in some way ‘closer’ to possessing the
pre-emptively referring to humans in such vulnerable situations. capacity as they have been endowed with it in the past. Thus,
While his ‘would desire’ explanation is appropriate for the the unconscious adult and the unborn human have differences
indoctrinated or depressed individual, unconscious individuals in the degrees of their potentialitydfor example, one has

J Med Ethics 2011;37:318e320. doi:10.1136/jme.2010.039859 319

 Essay

a single potentiality and the other a double potentiality, perhaps desire or value his or her own life and hence is only a potential
leading to a moral distinction between the two. However, it is person.
argued here that both the unconscious adult and the unborn In conclusion, huge problems arise when adopting utilitarian
human have an equal potential to possess the capacity to conceptions of personhood in the abortion debate, given that
achieve personhood in terms of moral significance because the a desire- or value-based requirement for a right to life (or
differences between the abilities of the two characters to develop continued existence) is flawed to the extent of ineffectualness
this functional capacity are morally insignificant, as discussed when one considers the sleeping competent adult. This desire- or
above (ie, the time it may take, the presence or absence of a past value-based requirement for a right to life (expounded by Tooley
history of a functional capacity). and Harris) is a necessary component of their utilitarian
John Harris in The Value of Life argues against the idea that is conceptions of the person in the abortion debate. It shows that,
being developed here against Tooley. He holds that an uncon- by killing a person, you are decreasing a pleasurable mental state
scious individual may not be able ‘to value life at that time which would have resulted from the fulfilment of their desires
[when unconscious], but they have not necessarily lost the but, by killing a non-person (ie, an unborn human), you are
capacity to value life’.8 He gives the example of another cogni- notdrendering the action permissible. Both Tooley and Harris
tive ability when discussing thisdthe ability to speak a foreign see the sleeping adult human’s capacity to desire/value
language. He states that he can speak French, and remarks that continued existence while conscious as a capacity while
this is true and remains so ‘while I am asleep or unconscious and unconscious. It has been argued here that such a capacity does
even if I do not speak a word of it for years on end’. Harris is not exist as a usable capacity when unconscious, but only
correct in his latter point as it refers to his being conscious; what a potential for the capacity exists. An unusable capacity in the
he is alluding to is a dispositional knowledge. The idea of sleeping adult is of no greater value than a lack of capacity in the
dispositional compared to occurent knowledge is an ancient one unborn human. One may be reminded of that which Mark
and dates back to Plato and Aristotle.9 One may have the Twain once said: ‘The man who does not read good books has no
dispositional knowledge of how to speak French when one is advantage over the man who cannot read them’.
conscious whether one chooses to exercise that knowledge, This essay has been necessarily limited in its discussion of
bringing it to the fore or not, ‘if I do not speak a word of it for personhood, especially in regard to what is the haunting issue at
years’. stake: how do we value life? As a result of the substantial flaws
Where Harris’s argument breaks down, however, is his overly in utilitarian thinking discussed with regard to ideas of person-
generous use of the word ‘capacity’. While it may be true that hood in the abortion debate, the theories that have been
one does not have to exercise an ability to have the capacity to presented should be viewed as defunct unless severely modified
do it (ie, one may have the dispositional knowledge to do it), one as their moral justification for abortion would allow for the
must be able to exercise it otherwise how can it be said that one ethical killing of unconscious or sleeping adults. This does not
has a capacity for something? Harris even directly states that necessitate that abortion in itself is a morally wrong undertaking
the unconscious human ‘may not be able to value life at that time but that the ethical justifications that have been employed for it
[sleep]’ (emphasis added).8 If a person does not have a usable here are incorrect in their assertions.
capacity at a given time to exercise an ability, then in what sense
can they be said to have a capacity to do it? What Harris here Acknowledgements The author thanks Professor Ruud ter Meulen and Dr Richard
has overlooked is that something must occur (ie, waking) for the Huxtable (University of Bristol, UK) for their valuable grounded advice on this essay
and their vital encouragement towards my understanding of bioethics.
unconscious person to be able to hold an exercisable capacity.
Hence, his unconscious capacity is much more like a potential Competing interests None.
capacity, that a person regains once conscious. Provenance and peer review Not commissioned; externally peer reviewed.
John Harris’s ascription of personhood requires the ability to
value life.10 This criterion for personhood is much like Tooley’s
REFERENCES
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‘person’. Both are utilitarian arguments based on the premise 2. Tooley M. Abortion and infanticide. Philos Public Aff 1972;2:44.
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4. Tooley M. Abortion and infanticide. Philos Public Aff 1972;2:38.
least a morally neutral act to end that life painlessly as you 5. Tooley M. Abortion and infanticide. Philos Public Aff 1972;2:48.
will not cause pain to the individual whose life you are extin- 6. Tooley M. Abortion and Infanticide. Oxford: Oxford University Press, 1983:121.
guishing. As has been argued previously, these theories fall 7. Tooley M. Abortion and Infanticide. Oxford: Oxford University Press, 1983:107.
down when considering the unconscious (yet normally fully 8. Harris J. The Value of Life. London: Routledge, 1985:25.
9. Aristotle Ethics of Aristotle: the Nicomachean ethics. Translated by Thomson JAK.
competent) individual and lead to the conclusion that, like the Penguin Books, 1955.
unborn human, the sleeping adult human only has a potential to 10. Harris J. The Value of Life. London,UK: Routledge, 1985: passim.

320 J Med Ethics 2011;37:318e320. doi:10.1136/jme.2010.039859

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