Ale

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Aleksander Stępkowski (ed.)

Protection of HumanLife in Its Early StageIntellectual Foundations and Legal Means

AD FONTESA D F O N T E SSC

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Aleksander Stępkowski, member of the Faculty of Law and Administration at the University of Warsaw, scholar at the universities of Manchester, Oxford, Edinburgh (United Kingdom) and Leuven (Belgium). His research activity concentrates on private and public comparative law and interrelations between philosophy and legal culture.

The book consists of thirteen studies examining different aspects of human life protection in the early stage of its development. The contributions are arranged in three parts. Part I focuses on theoretical problems and examines the main issues of contemporary jurisprudence. The foundation of human rights, different approaches to sovereignty, the relation between law and science, the legitimacy of judicial power, and the nature of legal authority are discussed. Part II presents the issues within the national contexts of the USA, Germany, Austria and Poland. In a wider perspective, Part III examines the issue of the protection of human life in the prenatal phase on three different levels: within the EU, within the European Court of Human Rights case law and the UN system.

ISBN 978-3-631-64227-6

Aleksander Stępkowski (ed.)

Protection of Human Life in Its Early Stage

Intellectual Foundations and Legal Means

Bibliographic Information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the internet at http://dnb.d-nb.de.

This book was published with a financial contribution made by the Ordo Iuris Institute for Legal Culture and The Rule of Law Institute.

Scientific reviewers of the book:

Prof. dr hab. Hubert Izdebski Prof. dr hab. Andrzej Zoll

Translation of texts 7 and 8 by Teresa Bałuk-Ulewiczowa

Translation of text 9 by Konrad Szulga

ISSN 1613-947X ISBN 978-3-631-64227-6 (Print)

E-ISBN 978-3-653-03728-9 (E-Book) DOI 10.3726/978-3-653-03728-9

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The Necessity for a Holistic Approach to Protecting Human Life

Aleksander Stępkowski*

The argument of this contribution is that the status we give to human life in its prenatal phase on the grounds of law and, more broadly, of the whole of culture, is not a self-contained issue, a particular aspect of human existence which may be modelled irrespectively of how we treat human life in the later phases of its development. The depenalisation of abortion turns out to be only the first step on the road to the relativisation of the protection of human life in its later stages as well. We may say that currently the differentiated attitude to life protection de-pending on time before or after birth has become the generally accepted standard. However, once changes occurred in social awareness following such amendments to the law, they did not bring a stable legal status for the human being. In the last decades of the 20th century postulates to weaken the legal protection of human life were being voiced more and more often for the post-natal period as well.

The arguments supporting this attitude are to a large extent based on the changes which have ensued in the public awareness of the western societies, un-der the impact of the legal regulations admitting, or sometimes even disseminat-ing, abortion. These were the grounds on which the claim was put forward that the fact of birth could not be regarded as endowing the human infant with a status substantially different from what the unborn had prior to birth. And this is how infanticide began to be justified. Its proponents said that the right to life was not determined by the human being’s existential status, but depended on whether he or she had certain mental properties, in particular “self-awareness,” which was supposed to turn a member of homo sapiens into a “person.” Probably the first to put this claim forward was Michael Tooley;1 and subsequently Peter Singer dis-seminated it.

* Member of the Faculty of Law and Administration at the University of Warsaw. Associate Professor in the Chair of History of Political and Legal Thought; President of the Ordo Iuris Institute for Legal Culture. He holds a Ph.D. in Law and a Habilitation in Legal Sci-ence. His research activity concentrates on private and public comparative law and the interrelations between philosophy and legal culture.

1 M. Tooley, Abortion and Infanticide, Philosophy & Public Affairs, Vol. 2, No. 1 (Autumn, 1972), pp. 37-65.

98 Aleksander Stępkowski

Singer admitted that the strength of the arguments against abortion came from the fact that birth did not mark a dramatic change in the manner of human exist-ence, one day within the maternal uterus and the next outside it. Therefore, he claimed, human development was a continual process with no clear points sepa-rating off particular phases, and this was also the continuity we have as regards the child’s ethical status. At the same time, observing the de facto consent to the practice of medical infanticide in hospitals, Singer postulated that such practices should be recognised as morally fully warranted. He emphasised that there was no reason why a foetus, which up to the moment of birth had not enjoyed any right to life, should suddenly acquire the same right to life as that enjoyed by all other humans.2

For today’s influential moral philosophers the de facto denial of the right to life to the human being in the foetal phase serves as a point of departure for an argument to justify the relativisation of life protection for human beings after birth as well. In other words they are saying that what makes the protection of human life necessary is not the fact of being a human but whether or not a particular hu-man individual possesses certain psychological and physical properties. Since the fact that a foetus is human has not prevented legislators from denying it the right to life, then logically there should be no deterrent to denying that right to children after birth.

Tooley and Singer were merely the pioneers who launched this trend in medi-cal ethics, discriminating among human beings as to which humans had the right to live. Currently we are hearing similar postulates being voiced more and more openly by young philosophers who have acquired their academic credentials un-der the auspices of Singer’s disciples. At the beginning of this year academia and public opinion was shocked by the internet publication of an article by Al-berto Gubilini and Francesca Minerva in which they endeavoured to present an ethical justification for the practice of infanticide, which they labelled “after-birth abortion.”3 Their arguments were based on exactly the same ideas put forward by Tooley and propagated by Singer, who had ascribed the right to life not to the hu-man being but to the “person.”

Tooley was the first to put forward the notion that the concept of a person should be understood as “an organism possessing the concept of a self as a con-tinuing subject of experiences and other mental states, which believes that it is it-self such a continuing entity.” 4 Peter Singer followed on from there, claiming that

2 P. Singer, Rethinking Life & Death. The Collapse of Our Traditional Ethics, Oxford Uni-versity Press, 1995, p. 130.

3 A. Giubilini, F. Minerva, After-birth Abortion: Why Should the Baby Live?, Journal of Medical Ethics vol. 39, 5/2013, p. 262.

4 M. Tooley, op.cit., p. 44.

The Necessity for a Holistic Approach to Protecting Human Life 99

a person’s alleged “self-awareness” was expressed by him or her wanting to live and making plans for the future, since only a person could envisage the possibility of his or her own future existence as him or herself.5 Thereby for Singer the right to life was associated with an individual’s possession of certain psychological and physical properties qualifying that individual to be considered a “person.” These properties may also be manifested in certain animals. Hence, according to Singer, not all members of Homo sapiens were persons, and not all persons were members of Homo sapiens. 6 A given individual had a better or worse right to life depending on how much or how many he or she had of the required properties defining the “person” in Singer’s way of understanding what a “person” was. Hence the lives of many animals would deserve more legal protection than the lives of some hu-man beings, and certainly more than the lives of children in the prenatal stage of growth. In the light of these assumptions the termination of a given individual’s life would only do harm to him or her and infringe his or her right to live insofar as he or she may be deemed to be a “person” in Singer’s sense, that is be able to make plans for the future, which would be annihilated with his or her death.

Giubilini and Minerva, who adopt Tooley and Singer’s idea of the “person,” write that that the moral status of an infant is equivalent to that of a foetus – and that both infant and foetus are “only potential persons.” From this they infer that neither the foetus nor the newborn child can be considered a person in their sense, which they consider to be the only relevant sense from the moral point of view. Hence they believe that the neonate, who is merely a “potential person,” has no right to life and therefore it should be admissible to kill him or her in all the cir-cumstances in which abortion is permitted. According to them the life of a new-born child should be protected only insofar as his or her life is protected in the prenatal stage, in other words to a very limited extent. Therefore, since “severe abnormalities of the foetus and risks for the physical and/or psychological health of the woman are often cited as valid reasons for abortion” 7 they should be con-sidered also as valid reasons for “after-birth abortion” – as Minerva and Giubilini call the killing of a newborn baby.

They propose the term “after-birth abortion,” as they deem it to be more ad-equate than possible alternatives like “infanticide” or “euthanasia.” According to Giubilini and Minerva, the equivalence of the moral status of the foetus and new-born child makes the term “abortion” more adequate than “infanticide.” On the other hand, they consider “after-birth abortion” a better term than “euthanasia,” as it should be allowed not only in cases where the newborn child is suffering from some defects or an illness, but also for neonates who are perfectly healthy, as these

5 P. Singer, op.cit., p. 197. 6 Ibid., p. 206. 7 A. Giubilini, F. Minerva, op.cit., p. 261.

100 Aleksander Stępkowski

authors consider the economic well-being of the family a good enough reason to kill the newborn baby – even a perfectly healthy one.

But what does accepting Giubilini and Minerva’s consistent development on Tooley and Singer’s ethical line mean in reality? Giubilini and Minerva claim that “the rights and interests of the actual people involved should represent the prevail-ing consideration in a decision about abortion and after-birth abortion.”8 In reality this is no less than a justification of violence against the unborn or newborn child. In the light of their theory of ethics those who are currently in a privileged situa-tion, healthier, more powerful and capable of exercising their will (also with the use of violence) may arbitrarily use their power over, and against, those who are weaker and unable to put up any resistance to violence. Giubilini and Minerva are absolutely explicit about this: “however weak the interests of actual people can be, they will always trump the alleged interest of potential people to become ac-tual ones.” 9 Remarkably, here they have refrained from using the word “person” in the artificial, technical meaning inherited from Tooley in which they usually apply it. Here they just write about “actual” and “potential” people. So their ap-proach to human beings in the pre- and neonatal phase of development means not only the depersonalisation but in fact the dehumanisation of the foetal and new-born human being. Admittedly, ethical views of this kind were quite widespread in our civilisation at the turn of the 19th and 20th century, but they seemed to have been repudiated and relegated to the most embarrassing chapters in the history of moral philosophy. Or so it seemed.

Neither can there be any doubt that the depersonalisation of weaker human beings postulated by Tooley, Singer, and their continuers, expressed in the denial of the personhood of the weaker, cannot be restricted in a rational manner exclu-sively to the neonatal period in human development. Albeit Giubilini and Minerva give the impression of implying a limit, yet at the same time they make the reser-vation that they are not suggesting any threshold nor putting forward “any claim about the moment at which after-birth abortion would be no longer permissible.”10 Thereby they are opening up the floodgates for those who are like-minded in the realm of ethics, and we may expect a rapid diffusion of attitudes on ethics claim-ing that only the strongest human beings deserve to be treated as fully human.

Moreover, we cannot forget that with the passage of time this attitude on eth-ics is becoming more and more radical. While Peter Singer still held that the adop-tion of healthy children was an alternative to infanticide, Giubilini and Minerva refuse to assign adoption a preferential status over child-killing. They justify this on the grounds that the irreversibility of a decision to kill the child allegedly helps

8 Ibid., p. 262.9 Ibid., p. 263.10 Ibid., p. 263.

The Necessity for a Holistic Approach to Protecting Human Life 101

the mother to overcome the trauma which, they say, may be more distressful for the woman in the event of her giving up her child for adoption. For this reason they claim that the killing of the newborn baby should be a permissible option for a woman to save her from the stress she might suffer by giving up her baby for adoption;11 and this statement has received the approval of Peter Singer as the next step in the argumentation justifying the slaughter of a healthy newborn baby.12

One cannot but agree that the ethical position I have briefly presented is fairly coherent – within the framework of the assumptions on which it is based. Fur-thermore, usually it is presented on a foundation of claims and opinions which are broadly accepted in our contemporary culture, albeit that acceptance does not go as far as acknowledgement of the consequences which are their logical out-come. It appears that the contemporary anthropocentric intellectual culture entails aspects the logical consequences of which lead to postulates that are profoundly dehumanising. It seemed that the disclosure of the barbarous practices of the Na-zis during the 2nd World War and the censure and rejection of the eugenic prac-tices conducted in many democratic countries in the early 20th century would be a sufficient deterrent protecting us against a revisionist return to such despicable treatment of human beings who happen to be weaker. The fact that things have not at all proceeded in that way and innocent human beings are being subjected at various stages in their development to such abominable practices, what’s more – practices theoretically exonerated and sponsored in scientific journals, is not an optimistic outlook for the future. Our Western civilisation turns out to contain ingredients which – despite the traumatic experiences, despite the vows of “never again” – make people prone to commit the mistakes of the past again and again. Therefore we should look into the philosophical backdrop to this situation.

Putting it in a nutshell, the causes of this trend are to be sought in the fact that our contemporary intellectual culture is based on the materialist standpoint. It is no coincidence that the furthest-reaching postulates to relativise the protection of human life are being propagated by individuals under the strong influence of Neo-Marxism, which radicalises the materialism of traditional Marxism. How do materialist principles translate into postulates for the restriction or outright denial of the legal right to life protection for the weakest human beings?

In classical philosophy the existence of living beings is regarded as compris-ing a material factor and a non-material factor. The non-material factor makes up the essence of existence, which determines a living being’s identity in a perma-nent manner. If reality is viewed from this intellectual perspective, the existential

11 Ibid., p. 263. 12 Peter Singer has acknowledged that Gubilini and Minerva have gone a step forward in

comparison to arguments so far formulated. http://chronicle.com/blogs/percolator/peter-singer-weighs-in-on-infanticide-paper/28885 (16.09.2012).

102 Aleksander Stępkowski

status of the human being is determined by his or her humanity, which on account of its non-material nature does not undergo any qualitative changes throughout the individual’s entire development, despite the far-reaching material changes to which the human being is subject in the various stages of his or her life.

But the contemporary intellectual culture is associated with the growth of the experimental sciences, the empirical methodology of which rapidly acquired a thoroughly rational and scientific reputation. However, these methods can be used only to discover and learn about the material aspects of reality. Not only is this a patently reductionist approach, but it is also a serious obstacle to the formula-tion of questions on the ontological identity of the existence of living beings. Ac-cording to the materialist approach each and every existence is merely a certain amount of matter which is organised in a manner subject to evolutionary change in time. Hence the identity of a living being is turned into something that is tem-porary. That is why for the sciences based on the materialist paradigm the sense of reality lies in the evolutionary process to which matter is subject. This dogma of the evolutionist religion, superstitiously adhered to by a majority of today’s scientists, has relegated the classical ontological view, which acknowledges an atemporal, non-material component in the living being, to the realm of intellectual heresy daring to challenge the “indisputable” axiom that all living beings must be subject to change with time.

Given such an intellectual context the existential, and therefore also the ethi-cal status of the human being cannot be defined interminably by the concept of humanity treated as a non-material, atemporal human existence not subject to change with time but determining the way in which the material component in a human being is organised. Materialism says the exact opposite: it is the way mat-ter is organised in the body that determines the identity of a living being. Hence attempts are being made to reduce humanity to the chemical structure of the hu-man DNA.

If we treat the philosophical premises of contemporary intellectual culture seriously and draw the unavoidable conclusions from them, the existential and hence also the ethical status of a living being may be envisaged exclusively within the framework of its position within the material dimension. In this way the ethi-cal status of a living being is merely the resultant of its current autonomy. But consequentialists like Peter Singer reject the traditional liberal hypothesis that every human being is an autonomous individual. The fiction of this claim has all too often been shown up by the social realities. The empirical experience of human existence clearly shows that the autonomy of the human individual has a completely different meaning at different stages of life. In the prenatal stage it is virtually non-existent, whereby it is easy to deprive the individual in this phase of life of his or her status as an independent subject. With the passage of time, if the

The Necessity for a Holistic Approach to Protecting Human Life 103

individual is lucky, he or she will acquire a more and more autonomous position, but a time will come when the scope of his or her autonomy will start to shrink, and eventually reach a point when it ceases to be a safeguard against the expan-sion of other individuals, who enjoy greater autonomy at that point in time. From the materialist’s point of view, taking the life of a being whose autonomy is effec-tively limited to a state of dependence does not seem to be doing real harm to it. Hence Giubilini and Minerva write that only at some future time may the foetus or neonate achieve a level of autonomy which will allow it to be recognised as a “person,” a subject enjoying the right to life. Until it reaches that state, for them the child is merely a “potential person,” whose level of autonomy is so low that the taking of its life can hardly be considered harmful for it.

A review of these contemporary developments in ethics clearly shows that the tolerance of abortion effectively means consent for the arbitrary determination of the period of time in which human life is given the protection of the law, and beyond which the stronger may freely dispose of the lives of the weaker. In such a context it becomes absolutely clear that the legality of killing children in the prenatal stage of life is merely the first step on a longer process. If we admit abor-tion we cannot maintain that the circumstances which were supposed to justify the killing of the child in the prenatal stage cease to hold at the moment of birth. If we do not guarantee the protection of human life from the moment of concep-tion, it will only be a question of time before we admit that the time of birth need not mark the beginning of life protection, either. And once we have reached that conclusion every subsequent time-limit on the admissibility of “after-birth abor-tion” will merely be a temporary convention, easily moved to later and later stages of human development. So if we really want to protect human life and not just look for excuses allowing the more powerful to exercise violence on the weaker, we must insist that there are no grounds at all on which the deliberate and wilful taking of a human life in the prenatal phase may be recognised as ethically and legally admissible.

Ale

ksan

der S

tępk

owsk

i (ed

.) · P

rote

ctio

n of

Hum

an L

ife in

Its E

arly

Sta

ge

10

Aleksander Stępkowski (ed.)

Protection of HumanLife in Its Early StageIntellectual Foundations and Legal Means

AD FONTESA D F O N T E S

SCH

RIF

TE

N Z

UR

PH

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SOPH

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Aleksander Stępkowski, member of the Faculty of Law and Administration at the University of Warsaw, scholar at the universities of Manchester, Oxford, Edinburgh (United Kingdom) and Leuven (Belgium). His research activity concentrates on private and public comparative law and interrelations between philosophy and legal culture.

The book consists of thirteen studies examining different aspects of human life protection in the early stage of its development. The contributions are arranged in three parts. Part I focuses on theoretical problems and examines the main issues of contemporary jurisprudence. The foundation of human rights, different approaches to sovereignty, the relation between law and science, the legitimacy of judicial power, and the nature of legal authority are discussed. Part II presents the issues within the national contexts of the USA, Germany, Austria and Poland. In a wider perspective, Part III examines the issue of the protection of human life in the prenatal phase on three different levels: within the EU, within the European Court of Human Rights case law and the UN system.

ISBN 978-3-631-64227-6