I will argue that there are cases where attitudes of love and care do endow an entity with moral status, in the sense that others have the negative duty to avoid causing harm to the entity because it has acquired value in its own right, and not merely be

Comments on “Sacred Mountains and Beloved Fetuses: Can Loving or Worshipping Something Give It Moral Status?” (Pacific APA 2006)

Laurie Shrage ljshrage@csupomona.edu

I will argue that there are cases in which attitudes of love and care do endow an entity with moral status, in the sense that others have the negative duty to avoid causing harm to the entity because it has acquired value in its own right, and not merely because harming it would harm those with moral standing.

Let me start with Nina’s fetus. I will grant for the sake of argument, as Harman does, that pre-conscious fetuses lack moral status. Imagine however a pregnancy in which Nina regards her fetus as her future child. In other words, imagine that Nina is committed to giving birth to the fetus she is carrying and then parenting this child. Because of Nina’s attitudes and intentions, the fetus she is carrying is her developing child, and others have an obligation not to harm it, not merely because they would be harming Nina, but because they would be harming someone’s developing child.

I agree with Harman that the clinic protesters’ love for Nina’s fetus does not obligate Nina to avoid seeking to terminate her pregnancy. That is, the clinic protesters’ love does not impose on Nina the positive duty to support or care for her fetus by continuing her pregnancy. But suppose Nina could discontinue her pregnancy without harming her fetus through a procedure that removes and transfers the fetus to another womb. To make this case easier to decide, let’s assume that this procedure is no more risky or inconvenient to Nina than the abortion method she would otherwise have undergone. Let’s also assume that the clinic protesters’ not only love Nina’s fetus, but have found suitable adoptive parents for Nina’s fetus. These adoptive parents love the fetus Nina is carrying and regard it as their developing child. Does Nina have the right not only to remove the fetus from her body but also to destroy it—that is, to destroy the developing child of the would-be parents when it is no longer a burden to her?

I accept the outcome that the love and commitment to nurture of the adoptive parents in this case endows Nina’s fetus with moral standing in such a way that Nina is obligated to avoid causing unnecessary harm to this fetus. Because the fetus’s moral standing does not impose on Nina or anyone else the positive duty to continue gestating her fetus, she should be permitted to seek to terminate her pregnancy, even if this can only be done in a way that would cause harm to the fetus. Moreover, I do not believe the fetus’s moral standing imposes on Nina a duty to undergo a significantly riskier or inconvenient abortion procedure in order to preserve the fetus. Furthermore, if there was a procedure that would allow Nina to detach herself from her fetus without harming it, but there were no others available to care for her fetus, neither Nina nor others would be obligated to support it, though they are obligated to minimize its suffering. Yet, when there are others who are available and competent to care for this fetus, and when the fetus is detached from Nina’s body, the love and concern of others would be sufficient to endow the fetus with moral status that would obligate Nina not to harm it.

U.S. courts have reasoned in a similar fashion when dealing with cases of fetuses that survive an abortion procedure. In Abele v. Markle (1972), a federal court judge, Jon Newman, ruled that if an intended “stillbirth” was viable after an abortion procedure, the doctor or biological mother did not have the right to destroy the surviving infant. Because the mother was allowed to have her “abortion,” in a way that respected her right to privacy, the state could now, if it chose, advance its interest in protecting the value of human life by protecting such an infant. In such a situation, we might need to consider whether a woman has, in a sense, “abandoned” her infant, which would limit her parental authority over its fate, or whether she should retain some parental rights and have a role in selecting suitable adoptive parents. Some may feel that, because the fetus is Nina’s genetic offspring, she has the right to decide whether (and by whom) it is adopted, or whether it lives or not, even after it is detached from her body. Yet, it is not evident that Nina’s right to decide what happens in and around her body encompasses the fetus’s body; or rather, to assume this, begs the very issue under discussion, which is whether the fetus has any moral standing on its own.[1] In addition to court rulings on the “live-birth” problem, federal legislation such as the “Unborn Victims of Violence Act” (2004) and the 2002 amendment to the State Children’s Health Insurance Program (SCHIP) that would permit state’s to enroll “unborn children” in the program reflect the idea that fetuses have moral standing, though some supporters of these bills may grant fetuses full moral status or personhood. Yet, such laws can be supported by those in favor of reasonable access to safe and affordable abortion services, as they only need recognize that fetuses have some moral value, not the value of full persons. What these rulings and laws can and should recognize is that a young fetus in a wanted pregnancy has a different moral status than a young fetus in an unwanted pregnancy.

Through acts of love, support, recognition, adoption, naming, and so on, fetuses enter a web of human relationships that render them members of a human community. Though they do not achieve full personhood, or a full set of human and civil rights until birth, we can grant that before birth fetuses have a moral status that imposes on others the negative duty to spare them unnecessary harm and suffering. By acknowledging that relational properties can endow fetuses with moral status, we can explain why a wanted fetus has a different moral status than one which is not—or why an embryo with a womb of its own and at least one willing parent has a different moral status than an embryo stored in a fertility lab and not scheduled for use by its genetic parents or by potential adoptive parents. We can also distinguish the act of a physician who performs a requested abortion from a third-party assault that damages someone’s fetus. The latter should be a criminal offense because it violates the rights of a person and the rights of a developing human.

Harman’s paper raises the issue of whether entities other than fetuses can acquire moral status through the intentional and attitudinal states of others. So let me try to apply my analysis to sacred mountains and other nonhuman objects that have great significance to others.

The relationship that Harman’s imagined tribe has formed with a particular mountain does seem to obligate others not to cause unnecessary harm to the mountain. But mountains, unlike humans, are subject to rules of property ownership, so let me consider the case where the mountain belongs to neither the tribe nor hikers but to a private third-party. Should the private third-party owner(s) grant hiking permits to individuals who wish hike on this mountain? Or perhaps the issue is whether the owner’s right to grant access to and use of the mountain should be limited by the tribe’s relationship with the mountain? Often our rights to use, dispose, or alter things we own can be limited by a public interest; for example, if I own a building that is protected by historic preservation codes, or land or trees protected by environmental policies.

I think a good case could be made that the historical and cultural significance of a particular mountain to a particular group of people should constrain a property owner’s access, use, and disposal rights. But this issue for Harman is whether we should limit the rights or impose certain duties on a property owner in order to protect the interests of the tribe or in order to protect some entity that has acquired moral status because of its importance to the tribe? Suppose the tribe were to disappear through attrition or that future descendents of the tribe no longer regarded the mountain as significant. It is often the case that buildings protected by historic preservation codes have little sentimental or cultural value to their contemporary occupants or users.

I would argue that, even if the tribe disappears or its current members no longer value the mountain, we should not immediately or necessarily remove societal protection from the mountain. Perhaps we should protect the mountain for future generations of the tribe who may come to recognize its importance to their group. Perhaps we should protect the mountain for future generations of humanity in order to preserve and honor the memory of the tribe and its customs. Because of this tribe’s historic relationship with the mountain, the mountain has entered a web of human relationships that transforms it from an ordinary piece of land to an entity with substantial historical and cultural significance. I don’t think it would be farfetched to say that the mountain has acquired moral status in the sense that it has acquired a right to some protection from unnecessary harm and destruction from the community. Whether the mountain in question retains its status and how its status should limit the rights of its owners is open to reconsideration and social negotiation. For example, we might debate the conceivable importance of the mountain to future generations or whether hiking on the mountain harms it and which cultural view of harm should prevail. We can debate what use of the mountain is appropriate for the owners, and if very little kinds of use, whether the government or some agency operating in the public’s interest should appropriate the mountain.

If having some (but not full) moral status means that we recognize that there are entities that, on the one hand, are not persons, but on the other, are not objects to be freely exploited by persons, then some of the entities we recognize in this middle status will acquire their status through human relationships and conventions. The alternative is to imagine that such status comes about not subjectively or intersubjectively, but by some objective criteria, which I doubt exist for most entities.

[1] See for example Ellen Frankel and Jeffrey Paul, “Self-ownership, Abortion, and Infanticide,” in Journal of Medical Ethics 5 (1979).