Whither human rights?

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.)


4 comments on “Whither human rights?

  1. Andrew says:

    glad to have you writing again

  2. Lexi says:

    You might be interested in a piece by Judith Jarvis Thomson, “A Defense of Abortion” in Ethics in Practice: An Anthology. Interestingly, she retains human rights language but defends abortion, not on the grounds of excluding the foetus from the human species based on lack of self-awareness or some other characteristic, but based on her belief that the right-to-life does not in itself mean the right to the use of someone else’s body; just because humans have a right to life does not mean that we must do everything in our power to keep them alive.

    My problem with human rights language is not so much that it, despite its assertions, excludes certain humans (although I am not denying that this is a problem), but that it sets up the relationship between humans as basically antagonistic. Even if the status of legal human is granted to the foetus, we are still thinking in terms of antagonism. It’s my right to my body versus your right to your life, and rights language itself cannot decide between them. Thus if we annexe our moral language to rights language, we have difficulty conceiving of relationships in terms other than rights, and are left without a way to decide between rights when they come into conflict. Not to mention the fact that a moral relationship based in antagonism seems rather antithetical to Christian moral relationships based in communion.

    • Theophilus says:

      That argument has some significant shades of Ayn Rand when I read it, in the idea that the weak do not have a claim to live off the resources of the strong, even temporarily. It is an argument based upon individual claims, rather than one that promotes solidarity among human beings. I think that is the more coherent argument than the one that the claim to another’s body is equal to the claim to life. It is generally accepted that murder is a more serious crime than theft and assault; the unborn takes from and physically distresses the mother, and thus perpetuates something that could be described as being like theft and assault, but the abortion of that being is in the same way like murder.

      I don’t think rights language is the best moral language, either. However, in Western secular society, it is the de facto moral language of the public sphere, and so I engage with it on that level. If Christian ethics are essentially based on hewing to the way of love, or faithfulness, or some other such thing, then at best it can only be imperfectly translated into the language of rights. On the face of it, the language of “human rights” would appear to contain a reasonable facsimile of the Christian notion of the intrinsic value located in all humans as image-bearers of God; this post was written to illustrate that this equivalence does not actually exist in the practice of human rights.

  3. Well said, Theophilus. Rights language in general bothers me, for some of the same reasons Lexi states here. It seems, especially in light of the articles you and Lexi mention, that contemporary human rights arguments are geared in many quarters toward the human rights of “the greatest of these” rather than “the least of these.” That by itself will cause the interests of these human rights advocates to dominate over against the interests of those who can’t advocate for themselves (which was really what human rights was about to begin with, I thought…).

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