A couple of things I’ve run across recently have caused me to wonder about the integrity of the belief system known as “human rights.” On the face of it, framing the rights afforded to legal persons as “human rights” is a stroke of brilliance because it affords legal protections on the basis of membership in the human species — something that is far more scientifically objective than other common historical notions of personhood. Moving responsibility for the definition of personhood to a scientific idea, that is, membership in a given species, should help to short-circuit bigoted attempts to deny the personhood and rights of socially despised groups, like Jews in Nazi Germany or Tutsis in early-1990’s Rwanda.
However, there have always been a few wrinkles in the standard Western human rights regime that I have found troubling. The most pronounced of these has to do with the way rights are discussed in the context of abortion law. In North America, at least, the landmark Supreme Court cases that provided all-but-universal access to abortion, R v Morgentaler in Canada and Roe v Wade in the US, decided in favour of expanded access to abortion on the grounds of the mother’s right to privacy. Inherent in these decisions was the view that fetal or embryonic human beings may be destroyed for the sake of alleviating non-life-threatening pressures upon a group of adult human beings, that is, the mothers of the fetal and embryonic humans. In these same countries, the most serious criminal sentences are levied upon those who deliberately kill other human beings who happen to be children, adolescents, or adults. This demonstrates that the critical insight of human rights, that of the universality of rights and privileges conferred upon all human beings, is not active in abortion laws. In fact, it is a far more utilitarian view that guides abortion law in the US and most of Europe, wherein the fetal human’s capacity to suffer and to survive apart from its mother is a determining factor in whether or not that fetal human being may be killed. (Canada places no legal restrictions on abortion.)
This dehumanization of unborn humans has in some areas begun to extend to newborns, for reasons that are simple extensions of the rationale behind abortion. Back in February, a paper written by the ethicists Alberto Giubilini and Francesca Minerva argued that infanticide should be permissible and renamed “after-birth abortion.” The authors justify their position on the basis that the population of living human beings is not coterminous with the population of persons entitled with rights, to wit:
The moral status of an infant is equivalent to that of a fetus in the sense that both lack those properties that justify the attribution of a right to life to an individual… Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’. We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her… [it is] not possible to damage a newborn by preventing her from developing the potentiality to become a person in the morally relevant sense… [W]hat we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.
The reasoning here is clear: persons with rights are those who have some sort of self-awareness who place some value on their own continuing sentient existence, rather than human beings per se.
This line of thinking is not, as might be thought, confined to those academic ethicists who are disciples of Peter Singer. Rather, this sort of understanding of the value of human beings is evident in the Canadian justice system. In a sentencing report issued in the case of a young woman who secretly gave birth to a son and strangled him to death, the judge mused:
Canada is one of the very few countries in the world that, for the last nearly 25 years, has had no regulation of abortion, even in relation to the third trimester. At a minimum, this reflects the lack of consensus. In my view, it also reflects the fact that while many Canadians undoubtedly view abortion as a less-than-ideal solution to unprotected sex, to unwanted pregnancy, Canadians generally understand, accept, and sympathize with the onerous demands pregnancy and child birth exact from mothers, especially mothers without support.
In this case, it is clear that the distress of the mother is viewed as being of at least equal consideration to the life of a newborn, never mind a fetus or embryo.
Simply put, the term “human rights” as it is typically applied in the English-speaking world is a misnomer. The determination of who is a legal person and gets to have legal rights is not, in fact, determined by sheer humanity, as the term “human rights” would suggest.
(Updated March 3, 2012 for grammar and clarity.)