An Attempt to Provide Coherent Arguments and Answers to the Questions Raised under the Italian Case in Abortion Group 2’s Blog, by SWAN = Stephen Wan

An Attempt to Provide Coherent Arguments and Answers to the Questions Raised under the Italian Case in Abortion Group 2’s Blog, by SWAN = Stephen Wan

We may take reference of legal issues of abortion when we focus on the moral issues of abortion. On moral ground we look into aspects including but not limited to the legal. If there is a realistic case as introduced by Abortion Study Group 2, we may apply some contemporary and legal rules, examine the moral standpoints and rationales (if any), and provide arguments and moral justification for application of such rules, if possible. Let us try to make use of the reference materials already discussed in our recent new blogs, and start our ethical studies and analyses as follows:

[Thanks for Abortion Study Group 2’s Italian case as copied fully below in blue]

Our comment and opinion are typed in green. The author never assumes the viewpoints and moral discussions below should be absolute without alternatives, but will try to maintain consistency in argumentation.

 

Complexity of the moral and legal issue of abortion

This is an excellent case which demonstrates the complexity of the moral and legal issue of abortion. [Excellent, yes, agreed. Thanks.]

In April 2010, an Italian pregnant woman committed herself to abort her 22-week infant after being acknowledged that her baby was disabled.

[Within the first 24 months, even a normal healthy foetus may be aborted under absolute discretion of the mother with doctors’ certificates to support the operation, as permitted by UK law.

Reason: 

(a)   From "neurological" view of life, life only begins on acquisition of brain wave pattern between 24-27 weeks of embryo development. In the first 22 weeks, no EEG brain wave pattern, the foetus may not be taken as a person.

(b)   The mother actually need not give any reason to justify abortion at this moment of time. The foetus, being disabled if born, helps to give better excuses.

(c)   As there are so many perspectives about when the life in the womb can be regarded as a person, if no brain wave is accepted as “no person”, then such intended abortion cannot be rejected. There is no murder for there is “no person” to be killed.]

Leave alone the question of whether this act was itself moral, but as stated by the Italian law, women had the right to choose an abortion on the condition that the going-to-be aborted infant did not have a possibility to live separately from the mother.

[Italian law is similar to UK law under EC law together, I suppose.

The mother appears to be sensible and reasonable, making decision only after obtaining full diagnostic report and understanding from the doctors.

She has fulfilled the expected requirement of due diligence and care, and considered the “expected future hard (but is it a sufficient ground? Some critics may demand. But as said above, the mother actually need not justify the abortion in week 22) life of her disabled baby without dignity.

Her decision to abort the foetus should be brave and sound. (We should assume all mothers are caring mother.)

She cannot just hold wait and see attitude causing delay and facing more risks and danger.

She has committed to a pre-term abortion, better than a late-term abortion.

She should be pitied rather than condemned.

She can only rely on doctors’ assessment and judgment that the “baby at birth” will not be capable of leading an independent life.]

What made the case more entangled was that the infant miraculously survived after the abortion procedure yet was left by the doctor and other hospital staffs to die! Not until a priest went to pray beside the baby was this mishap noticed by anyone.

[(a) Either the doctors might have made wrong assessment and judgment, or this particular foetus’ physical development is exceptional- a deviation from normal.

(b) If it should be the former, the doctors might be liable to conviction of murder NOT BECAUSE OF LETTING DIE but in view of the fact that such abortive medical act aims at causing death of such foetus inside the womb has become unsuccessful in failure, and a birth ensues, yet the neonate lives awhile but dies as a result of injuries sustained in the earlier attempt to destroy it, a verdict of murder or manslaughter may ensue.

(c) The moral ground for such severe accusation of the doctors is the non-acceptance of failure in handling an abortion of a pre-term child being born alive outside from the womb, and such a child should become a person, and its destruction may be regarded as destruction of a person, and that means homicide or murder.

(d) Therefore we do not even need to ask whether “letting die” should be the ground for conviction of murder or manslaughter. In fact we should not take “letting die” as the ground in confusing with involuntary passive euthanasia, which is legally permissible.

A number of controversial arguments should be considered in this case, and they are:

1)      The infant who was aborted evidenced that it could literally live independently from its mother (outside her womb) for two days, should it then be regarded as, although premature,  a ‘real’ human being?

[Yes, it is thus defined as a person having independent respiration for 2 days. BUT the doctors can also defend that it is NOT a person because there is no EEG brain wave pattern. Human Being real or NOT is the issue. Arguments only restrict to perception of “person and personhood”.]

2)      If so, should the operation decided by the mother and performed by the doctor be considered as Intentional Murder instead of an abortion?

[Definitely NOT an intended murder because there is no person in the womb. The intention is merely abortion within the normally accepted first 24 weeks. BUT there might have been professional negligence during operation for the abortion.]

3)      Once born alive, the infant was officially an Italian citizen and should be entitled to all of the citizen rights.

[Not really as the “so-called person” outside the womb actually has no EEG brain wave, no personhood and rationality so the status as a “person’ is unsafe and in doubt.]

4)      Was it morally or legally justified for the doctor to simply walked out of the door and leave it to die?

[Yes, both morally and legally. The foetus outside womb is definitely pre-mature for further healthy development outside mother’s womb. There is NO potential, capacity and prospect of successful growth development, no hope, and a desperate case. What’s wrong is not “letting die” as it might have been regarded as “dead” without EEG brain wave. so “letting die” is a wrong  impression as there can never be “letting the dead die”.

5)      And was it morally right for its mother to abandon it?

[Yes, sorry about that. She cannot keep the “dead” forever and make it alive again.]

6)      Undoubtedly that every couples prefer their children to be able-bodied and healthy for reasons like, being healthy leads to a more satisfactory life, having a disabled children would increase the burden (mental and financial) on the couples etc, but was it a strong enough reason for the mother to abort the infant just because it failed to attain her expectation?

[Sorry, but the questions appear unfair to the mother, being just an outsider’s own speculation and private query unrelated to the mother’s own perception, feeling, and personal ground for discretionary decision. The mother has sole discretion.]

7)      If so, would it be justified for a mother to abandon her child who has experienced a tragic accident and was subsequently disabled?

[They are different. To distinguish the two scenarios is simple: that the week 22 foetus is not just disabled but arguably a recognizable “person” who is already dead without EEG brain wave despite 2 days of “independent living with heartbeat and/or respiration”. A living child after accident is still a living child if he is saved alive despite disability after the accident. The child is a living person no doubt. Of course the mother should not abandon the child morally and cannot abandon the child in breach of laws.]

CONCLUSION:

(a)   If we accept EEG wave pattern as the sign for “person” and a recognized life, yet the above tragic happening may arise and becoming disturbing, we may have to ask again whether EEG brain wave should be a reliable test for existence of “person and personhood”.

(b)   If not, then the permission for abortion within the first 24 weeks should be pushed back further to an earlier date and a shorter period after conception.

(c)   Certainly up to now, no theory on definition of “beginning of a person and personhood” is absolutely free from any flaw.

(d)   Abortion should neither be promoted nor prohibited unless there is truth in flawless theory on either side pro-life or pro-choice. So far, it appears nil.

How UK Laws may consider death of babies in- or out-side the womb pre-, or at-birth , and post- natal deaths

Information from SWAN = Stephen Wan
Subject: How the laws take care of controversial death of foetuses in UK
(Indirectly provides us some realistic frames of reference for our discussion on moral grounds for abortion):-


Starting from a case A-G's Reference (no. 3 of 1994), the HL confirmed, obiter, previous understanding that to detsroy a viable foetus, however late in term, would not constitute any form of homicide.

(a) This is so whether the life of the foetus is destructed in the womb or whether the foetus is to be stillborn (i.e. dead at birth, NOT dead after birth).

(b) To attain personhood status, the live foetus' whole body must emerge into the world and at once sustain an independent existence from the mother no matter how brief the time is. [a test of independent respiration is favoured as reliable]

COMMENT:
(i) Of course, the pro-life anti-abortionist group will find this legislation horrible that even the foetus is a life but it never attains personhood until after birth with immediate independent respiration for existence.
(ii) And inside the womb, such a foetus life is NOT a person, and any treatment causing its death will not be regarded as murder or homicide (reason: no "person", no murder).
(iii) In other words, even though we know that as late as the 8th month (as long as the foetus is inside the womb), the foetus is pretty much the "same " as a neonate (a baby less than one month old after birth) - no further metamorphic development, recognition is given only to the baby after birth as a person in disregard of its health or physical fitness. That inside the womb, no matter how healthy, is given no such recognition.

(c) Therefore the legal confernment of personhood reflects a societal perceptions which are not underpinned by biological data.

(d) As a result, no murder, but only child destruction or unlawfully procuring miscarriage may be charged against a defendant whose unjustifiable or inexcusable act causes death of the foetus as long as the dead foetus remains inside the womb.

COMMENT:
The penalty on sentencing under such charges would be not be as severe as that under charge of murder.

(e) BUT if such act aims at casung death of such foetus inside the womb but has become unsuccessful, and a birth ensues, yet the neonate lives awhile but dies as a result of injuries sustained in the earlier attempt to detroy it, a verdict of murder or manslaughter may ensue.

(f) BUT please also note that a LAWFUL abortion may be allowed normally within the first 24 weeks . Cases when the babies should be born with serious deformities and handicap but only found out after the first 24 weeks, special permission shall have to be applied.

COMMENT:
Therefore, abortion purely can be decided even without the husband's consent, if the pregnant woman herself thinks fit. The foetus belongs to her alone for its fate. Under UK law, nobody can interrupt her decision, but a doctor can refuse to carry out abortion for her. She still needs two doctors' certification, both physically and psychologically fit for aborting her child foetus.

(g) a pre-term child born alive outside from the womb should become a person, and its destruction may be regarded as destruction of a person, and that means homicide or murder.

(h) A Late-term child birth in death due to infliction of pre-birth injuries still would not amount to the killing of a person (as firmly held by HL). But if it has been alive for even a short while (has become a person), then there is an offence (murder, manslaughter, child destruction...)

COMMENT (quoted from **):
It is believed that the receptuion of a child into the world after the point of birth is an event of enormous culturla significance, laden with symbolism. These social facts receive more weight than biological data facts when resolving the parameters of the law of homicide.

[** All the above points (except seveal COMMENT)  AND  the last COMMENT with (**) are extracted from Criminal Law: theory and doctrine, by A. P. Simester & G. R. Sullivan, Oxford- Portland Oregon: Hart Publishing, 2000, page 321]

HL stands for House of Lords

Phased & Substance Sortals: Existence and continued existence

When we discuss and argue about moral possibility of toleration or acceptance of abortion, we should learn the divergent opinions on concept of identity, existence and continued existence in order to hopefully grasp some clearer understanding of a life, person or person and personhood, and a thing, and whether a life is a thing or beyond a thing.

To gain more fruitful discussion, we should learn logician's concept of sortals:
(a) phased sortals,
(b) substance sortals

and try to understand statements like:
(a) A phased sortal designates a kind to which an individual may belong through only part of its history.
(b) A substance sortal designates a kind to which an individual necessarily belongs throughout its entire existence.

and
(i) If "x" is a substance sortal, there are criteria for being an "x" that any "x" must satisfy as long as it exists.

(ii) The criteria given by the substance sortal appear to state only a NECESSARY condition for the continued existence of an individual of the kind "x". It is not always SUFFICIENT for the continued existence of an individual "x" that, beginning with that individual, one can trace the continuous presence through space and time of an "x".

The above relates to the problem we come across when we face diffculties in agreeing on personal identity over time and ask what is necessarily involved in our continued existence. For one could cease to be a person without ceasing to exist, just as a child  may cease to be a child without ceasing to exist, [for example].

[The above are extracted out from J. McMahan's The Ethics of Killing: Problems at The Margins of Life, Oxford: OUP, page 6 & 7 (2002)]

Concerning the physical criterion of personal identity, at least 3 important questions have been asked by D. Parfit in his book: Resons and Persons, Oxford: Clarendon (1987) , page 202:-
(a) What is the nature of a person?
(b) What makes a person at 2 different times one and the same person? What is necessarily involved in the continued existence of each person over time?
(c) What is in fact involved in the continued existence of each person over time?

Please do not just limit oour thoughts on abortion when we read and re-read the above questions.

Please also think about whether there are contradictions, dilemma and paradoxes already "built-in" or concealed behind the questions that even Parfit, and later, McMahan, may have missed out in their discussions.

The above questions, no matter what, do open up our visions and at the same time, define more clearly some crucial points and scope that we should not ignore when we try to justify the pro-choice or pro-life positions on the topic about abortion.

The above questions help us check whether we may come into agreement on what we mean by "organism", "human", "human organism", and "human being".

Later, I may try to provide some more details on sortals and recognition as part of my studies about "stages, sortals and possible world" as written by A. Brennan

Arguments for or against the 4 Points of Time for Commencement of a Person

(1) At fertilization (conception in human beings):-
Yes, there is a zygote and then embryo, a new genome, and a strong argument from the potential perspective, to hold it as the commencement of a living human person, to many theologians and ethicists.
BUT

(a) 59-60% of all human embryos conceived (WITHOUT induced abortion) still cannot survive but 'miscarried" before th 8th week of pregnancy 'naturally'.

(b) Science at the moment perhaps still cannot answer for sure that fertilization (conception) as the meeting process of two cells (sperm and ovum) must be the sine qua non (an absolutely indispensable thing) of personhood.

(c) The essential discovery is: In marmoset monkeys, parthenogentic embryos can develop and successfully implant in the uterus. (i.e. need no sperm)

(d) Hence science cannot claim that creation of a new genome as a result of conception must be the absolutely indispensable point of time for commencement of personhood, and cannot even claim that conception is the sine qua non of development of the new individual organism.

(2) Acquisition of an Individual Physical Identity:-
An embryo may develop into twins within 14 days of fertilization (gastrulation), and if that does not happen, then it normally will be growing up into a single person, and so also may be supposed to be the start of personhood. In favour of this view, there are-

(a) scientists doing biomedical research on embryonic stem cells critically take refernce of this very important time slot.

(b) theologians talk about "ensoulment" during the short period  within 12- 14 days of fertilization by the obvious assumption that souls must be unique and separate to individuals including twins, and the time of souls entering the body as a metaphysical event must not be earlier than the first 12 days and not later than the 14th day.

(3) Acquisition of the Human EEG (Brainwave pattern):-
From "neurological" view of life, life only begins on acquisition of brain wave pattern bewteen 24-27 weeks of embryo development. Why?

(a) Actual connection between nervous system and the cerebral nerves only start in significant numbers from 7th month onward.

(b) Such synaptical connections allow communication and then coordination of neural activities  facilitating conscious awareness which to some ethicists, defines  personhood (only from this stage onward), as supported by this neurological view.

(4) Life begins at Birth:-
Why?
(a) Basically, the new genome (DNA) with the embryo alone cannot form the blue print for personhood. as the individual's trait and characteristics.

(b) There must be interaction of genetic DNA with the environmental variables throughout the process of development in the mother's womb that results in human characteristics.

(c) Therefore mother's womb is not a vessel, and the mother's body is a participant to help form the personhood of the baby during the full period of pregancy.

[The above discussions are mainly extracted and/ or paraphrased out from Alton, Althea K's "Staying Within an Understanding Distance"- One Feminist's Scientific and Theological Reflections on Pregnancy and Abortion]

Scientists' View: The Point Where Human Life Begins

According to Gilbert et. al. (2005) Bioethics and the New Embryology:-
There are at least 4 stages of human development that different scientists have asked us to consider as the point at where human life begins-

(a) Fertilization (the acquisition of a complete and novel genome)
(b) Gastrulation (the acquisition of an individual physical entity)
(c) EEG activation (the acquisition of the human-specific electroencephalogram, or brain wave pattern)
(d) The time of, or surrounding, birth (the acquisition of independent breathing and viability outside the mother)

Do classmates agree on the above, and know about the days or weeks after conception for reaching the above stages?

There are other more detailed sub-stages to be discussed later.

性愛的義務（如果有的話）

當人享受性愛帶來的快樂的同時，究竟人又有沒有必要為這與生俱來的權利去履行一些義務？

必須呈清一點，這裡所指「性愛的義務」並不是說「性愛是男女伴侶之間的義務」或「性愛是女人對丈夫 / 男朋友履行的義務」這類意思。一如開宗明義所說，是針對純性愛活動內參與者的權利與義務來提出討論。

在墮胎網誌中提出「性愛的義務」很明顯地讓人聯想到懷孕與生育。的確，本文想探討的正是這老掉牙的題材。從自然界法則去看，性行為之後繁殖下一代是正常不過的事情，為什麼今天人在享受性愛的同時，卻爭取不履行生育的義務呢？甚至試圖把這種免疫制定為一種合法權利？

當然，避孕已經成為「普世價值」的今天，來討論「性愛的義務」是否太落伍？太費時失事？不過這裡必須強調，如命題所示討論重點是「性愛的義務」，而不是「生育的義務」。

關於墮胎這個題材向來正反意見充斥，各有各的論點亦各自捍衛不同而一樣可貴的人類精神價值，而本文的目的是，當各種正反價值都無法在理性上凌駕對方的時候，嘗試回到最基本，甚麼前人定下的倫理價值都撇開不談，都不計算在內，只單純去看性愛活動，試圖從中找出性愛行為與墮胎的關係，從中找出結論。

簡單一點說，如果一個人只追求性愛的快樂，以此為其生存的重要目的，其他精神價值他都不在乎，在這樣的假設下，是否她（或他）就可以理直氣壯的進行墮胎？

蜜蜂的理性決定

花吸引蜜蜂來採花蜜，從而讓花粉散播，從而達到繁殖的目的。有一天蜜蜂說，我只想採美味的花蜜來吃，但不想再碰那些花粉，並想盡辦法不去碰他們，也為這種行為想出很多符合理性的理由（例如地球上太多花的話就沒有樹立足的地方），從而讓不碰花粉這種行為合埋化。

這個例子會令人聯想到什麼呢？可能有些人會想：「好呵，我不跟你辯，你們確有這個自由，又看看將來會如何（廣東話：我放長雙眼睇你將來會點）。」心裡卻想，你們這麼自私看看會嘗到什麼惡果。

如果每隻蜜蜂都這樣做的話，雖然花還有其他自然方法繁殖，但沒有了蜜蜂的途徑，而蜜蜂

不斷採花蜜，像蝗蟲一樣，不停掠奪別的生物的成果，而沒有貢獻，總會供不應求，密蜂最後也享受不到花蜜了。

一些人不想生育，卻想一直追求、一直享受性愛的快樂，會否又是另一種蝗蟲表現？性愛行為由人促成，沒有人自然就沒有屬於人類的性愛活動的出現。如果你有 100 歲命，贊成墮胎的你又會否擔心，到老時再難找到新「對手」呢？

事實上，從這角度出發，贊成墮胎的想法會否是一種反對性愛的表現？如果你喜歡性愛，理性角度看你絕不應該贊成墮胎，因為這是最基本的市場供求關係法則。

（代續）

Repost: The Judith Thomas’s Burglar Analogy

“If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house—for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars.”

“Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don’t want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective; and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not—despite the fact that you voluntarily open your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do—for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a army.”

The Burglar analogy pointing out the parents should not have responsibility for their own children to those “violinists”, “burglars”, or “person-plants”. Does the parents haven’t any responsibility or duty to their children even they have already taken precaution to avoid pregnancy? Since the World haven’t prefect contraception methods, or even those men and women think that coitus interruptus (體外排精) be avoiding pregnancy. It does not mean that they do not have any responsible for the foreseen results of actions. Abortion seems not a reason for relieving their responsibility.

Cars are vehicles that you normally should have control over. Imagine that car is becoming fully automatic control by artifactual intelligence technique or computer. You are the owner and driver of this car, and it hit a truck. I think that you still have some kinds of responsibility for this accident. Based on this thought experiment, I think that Judith Thomson’s Burglar Analogy is not strong enough to convincing me to accept abortion.