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Response
Correspondence to
Dr Bertha Alvarez Manninen,
School of Humanities, Arts,
and Cultural Studies, Arizona
State University, 4701 W
Thunderbird Road, Phoenix, AZ
85306, USA; bertha.
manninen@asu.edu
Received 9 March 2012
Revised 29 November 2012
Accepted 29 January 2013
To cite: Manninen BA.
J Med Ethics
2013;39:330–335.
330
Yes, the baby should live: a pro-choice response
to Giubilini and Minerva
Bertha Alvarez Manninen
ABSTRACT
In their paper 'After-birth abortion: why should the baby
live?' Alberto Giubilini and Francesca Minerva argue that
because there are no significant differences between a fetus
and a neonate, in that neither possess sufficiently robust
mental traits to qualify as persons, a neonate may be
justifiably killed for any reason that also justifies abortion. To
further emphasise their view that a newly born infant is more
on a par with a fetus rather than a more developed baby,
Giubilini and Minerva elect to call this 'after-birth abortion'
rather than infanticide. In this paper, I argue that their thesis
is incorrect, and that the moral permissibility of abortion does
not entail the moral permissibility of 'after-birth' abortion.
In their paper ‘After-birth abortion: why should the
baby live?’ (published in Journal of Medical Ethics,
2012), Alberto Giubilini and Francesca Minerva
argue that because there are no significant differences
between a fetus and a neonate, in that neither possess
sufficiently robust mental traits to qualify as persons,
a neonate may be justifiably killed for any reason that
also justifies abortion. In particular, Giubilini and
Minerva are concerned with cases where fetal defects
are not known until after birth, or if an unfortunate
event happens during labour and delivery that renders
the fetus impaired (eg, if the fetus suffered from peri-
natal asphyxia). However, they also argue that even
social reasons—for example, job loss or a change in
the status of a couple’s relationship—would justify
killing a neonate because such reasons are sufficient
for justifying abortion. To further emphasise their
view that a newly born infant is more on a par with a
fetus rather than a more developed baby, Giubilini
and Minerva elect to call this ‘after-birth abortion’
rather than infanticide.
Giubilini and Minerva’s article1 has garnered much
attention, and has been, unsurprisingly, criticised by
members of the pro-life community.2 I am not pro-life
—I do believe that women have a right to obtain an
abortion because I believe that every person has a right
to decide if they wish to use their body to sustain the
life of another. Nevertheless, I find Giubilini and
Minerva’s thesis deeply troubling. Having an immedi-
ate visceral reaction against a position, however, is not
sufficient for concluding that there is something wrong
with that position. (I am sure that 50 years ago many
people had a strong visceral reaction against miscegen-
ation, but this does not entail that miscegenation is
wrong.) Therefore, it is necessary to carefully explore
Giubilini and Minerva’s arguments in favour of this
very contentious conclusion. This is the aim of this
paper, and I submit that they have not successfully
argued that after-birth abortion is permissible.
The success of Giubilini and Minerva’s argument
rests on two premises:
Manninen BA. J Med Ethics 2013;39:330–335. doi:10.1136/medethics-2012-100656
1. The moral status of the newborn is equivalent
to that of a fetus; neither can be considered a
‘person’ in a morally relevant sense because
neither possesses an interest in continued
existence.
2. Preventing a newborn from becoming a
person—that is, thwarting her potential—
does not harm her.1
I will argue that their defence of the first premise
equates two senses of the term ‘interest’ (ie, posses-
sing an interest in something, in this case possessing
an interest in continued existence, versus taking an
interest in something) and therefore fails to show
that neonates, or fetuses, do not possess an interest
in their continued existence The argument they
offer in favour of premise 2 is rather unclear, and
subject to three interpretations that are all problem-
atic. The most charitable interpretation of their
argument in favour of the second premise employs
a very controversial position about diachronic per-
sonal identity (ie, the persistence conditions of
persons over time) that they make no attempt to
defend. After detailing how their arguments falter,
I will offer an alternative interpretation of abortion
rights that does not entail the permissibility of
‘after-birth abortion’ or infanticide.
THE MORAL ARGUMENT
According to Giubilini and Minerva, a person is
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… all
individuals who are not in the condition of attributing
any value to their own existence are not persons.1
This definition of personhood, and using this
definition to argue that only those who meet
these criteria possess a right to life, is not a new
one among philosophers and ethicists.i To be
clear, according to Giubilini and Minerva, it is
i
See, for example, Warren,3 Singer4 and Tooley.5 Also see
Chappel.6 Here Chappel argues against what he calls
‘criterialism,’ the view that possession of certain properties
(eg, sentience or rationality) is necessary and sufficient for
personhood. Rather, he argues, we antecedently grant
personhood to a being and then deduce from this that she is
likely to be the kind of creature who displays sentience,
rationality, self-consciousness and so on. Moreover, Chappell
argues that treating certain beings, for example infants, as
persons is a necessary prerequisite for them developing the
capacities of persons: ‘By years of treating her children as
creatures who “have the person properties”—in the sense
that interest the criterialist—she makes it true that they are
creatures who have the personal properties in just that sense
(p. 9). Giubilini and Minerva fail to really engage the vast
amounts of philosophical literature that exists about the issue
of personhood, much to the detriment of their thesis.
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not necessary for an individual to actually take an interest in
her welfare in order to have one. As they note, if I abscond
with a person’s winning lottery ticket, one she has no idea
she even possessed, I have harmed her even if she never dis-
covers the crime. This is because, although she never happens
to take an interest in her winnings because of her ignorance,
she is nevertheless capable of appreciating that she has been
harmed if she were to discover my theft. As Giubilini and
Minerva put it, such a person is ‘in the condition to value the
different situation she would have found herself in if she had
not been harmed.’1 It is the capacity to take an interest in X,
according to Giubilini and Minerva, that is necessary in order
to maintain that one has been harmed by being deprived of X
and, consequently, if one can be said to have a right to
X. Specifically, in order for a person to have a right to life, it
is necessary that the loss of her life constitute a harm for her,
and the only way that the loss of life can constitute a harm
for an individual is if she is able to value and take an interest
in her life. For the sake of argument, I will grant that an indi-
vidual can only have a right to X if the deprivation of X con-
stitutes a loss for her. (Although this, too, is a controversial
contention. If I own a fleet of 1000 cars, it may not harm me
if a single one is stolen (I may not even notice my loss), but I
nevertheless have a right to that car because it is my prop-
erty.) The problem comes with Giubilini and Minerva’s con-
tention that it is necessary that one be capable of valuing X
in order to be harmed by its deprivation, or, specifically for
our purposes, that an individual must be capable of attribut-
ing value to her own existence in order for her to actually
possess an interest in continued existence.
It is vital to emphasise that, according to Giubilini and
Minerva’s argument, an individual cannot really appreciate
that she is a victim of harm without possessing some rather
robust mental traits: she must be capable of seeing herself as
a subject of benefit and harm (ie, a certain amount of self-
consciousness is in order) and she must be able to reason that
certain things harm or benefit her. When discussing the right
to life in particular, Giubilini and Minerva’s argument entails
that only rational, self-conscious beings can possess a right to
life, since it is only these kinds of beings who can perceive
themselves as entities who exist over time and who can appre-
ciate that their death would constitute a loss of value for
them. This entails that most non-human animals cannot be
harmed by being killed (if it is done so painlessly, given their
sentience). More generally, their argument entails that one
cannot actually have an interest in X unless one is capable of
consciously taking an interest in X—that, in order to have a
welfare, or things that are in one’s own good, it is necessary
to possess the capacity to take an interest in one’s welfare and
one’s own good.
In order to begin to see why Giubilini and Minerva’s con-
tention is problematic, let’s take a look at the following exam-
ples where it seems acceptable to hold that a being has been
harmed by a deprivation of X even though she is utterly
incapable of appreciating X. Suppose a dog owner requests
that his dog be painlessly euthanised for no other reason
other than he is only allowed to have one pet and his dog has
passed the point of puppy-cuteness. Since the dog cannot per-
ceive of itself as a continuing entity existing over time (the
dog is not self-conscious), it does not have the capacity to
value its life, or contemplate a possible world in which he is
not living and be distressed by that idea. Because the dog
cannot take a conscious interest in its continued existence,
Giubilini and Minerva are committed to saying that the dog
Manninen BA. J Med Ethics 2013;39:330–335. doi:10.1136/medethics-2012-100656
Response
simply does not possess an interest in continued existence at
all. Painlessly euthanising the dog for such trivial reasons
would be no different from depriving any other organic
material of its life—this action would be on a par with
pulling out weeds. Another example comes from bioethicist
Bonnie Steinbock: a dog cannot take an interest in being vac-
cinated, since it does not possess robust enough mental traits
to understand the concept of health and therefore is not ‘in
the condition of attributing any value’1 to its health.
Nevertheless, it seems absurd to deny that the dog possesses
an interest in adequate medical care regardless of its inability
to appreciate it. Steinbock7 writes:
It is in the owner’s interest to have his animal vaccinated, since
owners usually want healthy animals. But it is also in the dog’s
own interest, since a dog that gets distemper will experience con-
siderable discomfort and probably die. We might reasonably
approach an owner who neglected to have his dog vaccinated by
saying: “It isn’t fair to the dog. Even if you don’t care if the dog
dies, you should vaccinate him for his own sake. ( p18)
Consider yet another example. Let’s say a 6-month-old infant
has contracted an illness that would painlessly kill him unless he
is medicated. The baby is certainly not ‘in the condition to
value the different situation (he) would (find himself ) in had
(he) not been harmed.’ A 6-month-old, though more mentally
capable than a newborn in several respects, is still not so men-
tally capable that he is self-conscious, values his life, and is dis-
tressed at the thought of his death. Indeed, I am not even sure
whether my 3-year-old daughter meets these criteria.
Nevertheless, I suspect many would agree that the 6-month-old
has an interest in the medication, that it would benefit him
because it extends his life, even if he is incapable of appreciating
it. Moreover, many would certainly agree that it is the infant
himself that has this interest, not just his parents or the people
who love him; the baby would retain that interest even if he
were an unwanted orphan. Indeed, if Giubilini and Minerva are
correct, a severely mentally handicapped individual (who never
develops any robust form of self-consciousness, and therefore is
unable to see himself as a subject of harm or benefit) would
have no interests at all outside of not being subjected to pain
(given his sentience). He would certainly lack a right to life on
the same grounds as fetuses and neonates do, and would prob-
ably lack a right to medical treatment, for the same reason the
6-month-old does. Suppose the subject here was an autistic
child who, at the age of 5, is utterly incapable of appreciating
the impact certain forms of education could have on her ability
to become a more verbal, rational, and self-sufficient human
being. According to Giubilini and Minerva’s above-mentioned
criteria for moral rights, such a child would have no interest at
all in acquiring this education, and therefore would not be
harmed by not obtaining it, because this child is also not in a
position to attribute any value to her education. But certainly
this is wrong. If the autistic child could become a more product-
ive member of society, and even attain more robust forms of
self-consciousness and reasoning abilities as a result of this edu-
cation, then it is undoubtedly in the child’s best interest to
receive that education, regardless of whether she is capable of
taking an interest in it.
Therefore, there is clearly a marked distinction between pos-
sessing the capacity to take an interest in X and actually having
an interest in X. Steinbock,7 acknowledging this distinction,
denotes two senses of the word ‘interest’: interest1 denotes
things that are in a being’s interest, whereas interest2 denotes
things an individual can take an interest in (p16). Having
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Response
interests in the first sense of the term is certainly sufficient for
being a subject of harm if such interests are violated. In this
sense, the autistic child lacks an interest2 in being educated, but
certainly possesses an interest1 in it because she stands to benefit
from that education. Consequently, she would be a victim of
harm by being deprived of her education. Similarly, the dog and
the 6-month-old baby lack an interest2 in receiving medical care
but both have an interest1 in it, and therefore being deprived of
medical care would harm them both. Possessing interests1 is suf-
ficient to render an individual a possible subject of harm if those
interests are violated.
All these examples illustrate that a being can benefit from X
even if he is utterly incapable of taking an interest in X. One
need not be capable of appreciating that one has been harmed
in order to actually be harmed. Indeed, if one takes a closer
look at Giubilini and Minerva’s wording, one can see that this is
tacitly acknowledged by even them. When discussing the case of
the ignorant lottery winner who has nevertheless been harmed
by having her ticket stolen, they maintain that the reason she is
still a victim is because she ‘is in the condition to value the dif-
ferent situation she would have found herself in if she had not
been harmed.’1 The implication here is that the harm done unto
her is antecedent to her being aware of it; if it were otherwise,
what would she be aware of? If a person can reflect on a coun-
terfactual state of affairs, and can appreciate that a deprivation
of X constitutes a loss for her, it is not that awareness (or even
the capacity to have that awareness) that constitutes the loss;
rather, the loss, the harm, must exist prior to her being aware
(or even having the capacity to be aware) of it. The capacity for
being aware of the harm is necessary in order for her to subject-
ively suffer, but that is quite distinct from saying that no harm
at all exists by being deprived of X unless one is capable of sub-
jectively suffering from the loss of X. If the loss of X didn’t
already constitute a harm, there would be nothing there to serve
as the cause for the individual’s suffering once she is capable of
understanding her loss.
What follows from this, then, is that one can still be
harmed by being deprived of X even if one is utterly incap-
able of appreciating that loss. An individual is harmed by an
action if that action constitutes an attack on her welfare;
that attack can occur regardless of whether the individual
possesses the capacity to appreciate that her welfare has been
compromised. Consequently, Giubilini and Minerva’s reasons
for not attributing an interest in continued existence to
fetuses and neonates are simply unsuccessful. The most they
have shown is that fetuses and neonates are utterly incapable
of taking an interest in their continued existence. But this is
trivially true, and it has no bearing whatsoever on whether
they actually have an interest in continued existence. That is,
all Giubilini and Minerva have shown is that fetuses and
neonates lack an interest2 in continued existence. But this
has no bearing on whether they have an interest1 in contin-
ued existence, and it is this interest that matters when deter-
mining whether someone has been wronged by being
deprived of continued existence. In order for their argument
to be successful, Giubilini and Minerva would have to show
that Steinbock is incorrect to draw a distinction between
interests1 and interests2, or that interests1 cannot exist
without interests2. They have not shown that either is the
case.
I want to now call attention to two important points that
Giubilini and Minerva fail to address. First, it is possible to
agree with their point that there is no intrinsic difference
between a later-term fetus and a neonate, but still contend that
332
there is a significant difference between a later-term fetus and
an embryo/early-term fetus. Therefore, from this perspective,
abortion is permissible in the earlier stages of pregnancy but not
later ones. A person who holds this position would deny that it
is permissible to kill a later-term fetus because it is impermissible
to kill an infant, given that there is no substantial difference
between the two. Such a person would, of course, disagree with
Giubilini and Minerva’s conclusion that neonates and later-term
fetuses are not harmed by their death. But Giubilini and
Minerva take for granted that acknowledging there is no signifi-
cant difference between a later-term fetus and a neonate logic-
ally leads one to the conclusion that ‘after-birth abortion’ is
permissible, rather than to the conclusion that later-term abor-
tions are impermissible (or all abortions for that matter, if one
also believes that embryos and early-term fetuses are not signifi-
cantly different from neonates).
Second, if neonates aren’t persons in the sense that they
possess limited moral status and no right to life, then what are
they; what is their moral standing? If they can be killed as wan-
tonly as Giubilini and Minerva suggest, this seems to relegate
them to the status of mere property. If the only interest new-
borns have, given their sentience, is the interest in not being
subjected to physical pain, then it is permissible to do almost
anything at all to them so long as it is done painlessly. This
means that parents can kill them, or deprive them of medica-
tion, love and attention, as long as they are not causing any
pain. And, given the robustness of the mental traits necessary
in order to be worthy of moral rights according to Giubilini
and Minerva, this status lasts beyond the first few weeks of life
—quite possibly into the toddler years. Although they claim
that their argument is only supposed to cover the first few days
of the infant’s life, this is simply a refusal to acknowledge the
logical implications of their view. The mental traits they claim
are necessary in order to possess a right to life do not yet exist
in children until the later toddler stages. As philosopher
Timothy Chappell6 writes: ‘If rationality is a necessary condi-
tion for counting as a person, that is, a member of the primary
moral constituency, then all children under a certain age will
fail to count as persons.’ (p3). The implications of Giubilini
and Minerva’s arguments are more far-reaching than they
admit.
THE METAPHYSICAL ARGUMENT
In responding to the objection that fetuses and neonates are
harmed by not being allowed to realise their potential person-
hood, Giubilini and Minerva1 write:
If a potential person, like a fetus and a newborn, does not
become an actual person, like you and us, then there is neither
an actual nor a future person who can be harmed, which means
that there is no harm at all. So, if you ask one of us if we would
have been harmed, had our parents decided to kill us when we
were fetuses or newborns, our answer is ‘no’, because they would
have harmed someone who does not exist (the ‘us’ whom you
are asking the question), which means no one. And if no one is
harmed, then no harm occurred.
This is a convoluted passage, and it can have at least three
possible interpretations (that I can see). The first one is that
killing a non-person is acceptable because only persons can be
harmed by being killed, since only persons can take, and there-
fore possess, an interest in continued existence. Above, I have
shown that this claim is not just contentious (and probably false)
but also not well supported by their argument. A second inter-
pretation is that we could not claim that we were harmed if we
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had been killed as neonates; in such a case we would not have
existed to be able to make the complaint at all. But this is tanta-
mount to arguing that killing has no victim because it gets rid of
the victim, and this is obviously absurd.
A third, and most charitable, interpretation is to construe
Giubilini and Minerva as making a metaphysical claim about the
nature of diachronic personal identity: killing the fetus or
neonate would not have harmed you because you didn’t exist as
a fetus or neonate; killing such beings would have prevented
your existence, but it would not have killed you because you
had not yet come into existence. Evidence of this interpretation
can be found when they write that one reason it is permissible
to kill a neonate is because ‘merely potential people cannot be
harmed by not being brought into existence’. In other words,
you, as a person would not have been harmed had you been
killed as a neonate because you did not yet exist. If this is,
indeed, the argument they mean to give, Giubilini and Minerva
appeal to a position known as the Psychological Account of
Personal Identity.8
Questions such as when did you begin to exist, when do you
die, and under what conditions does your self persist over time
constitute the main issues when discussing diachronic personal
identity. In an earlier essay, I argued that philosophers and
bioethicists often, sometimes unwittingly, assume certain posi-
tions on the issue of personal identity in many of their ethical
arguments.9 I further argued that addressing the plausibility of
those underlying metaphysical assumptions is a necessary pre-
requisite for assessing the success of the ethical arguments that
are built upon them. For example, in his famous article ‘Why
abortion is immoral,’10 Don Marquis argues that abortion is
wrong for the very same reason that killing most any other
human being is wrong: abortion deprives the fetus of its valuable
future. Among other things, a vital component of the success of
Marquis’ argument is that the embryo or the fetus is the same
individual over time, for depriving it of a future cannot constitute
a loss for a particular embryo or fetus unless that future rightfully
belongs to it—if it is the same being now that it would be in the
future. This is necessary so that we can properly attribute all of
those future valuable experiences to the embryo or fetus while in
utero. Because Marquis argues that abortion does constitute such
a loss for even an early-stage embryo, and because the only thing
a future person can have in common with a past embryo is that
both are the same human organism, Marquis tacitly assumes in
his argument that the persistence conditions of humans over time
lies in enduring as the same human organism (and, indeed, I have
heard him confirm that this is his view). This position has been
dubbed ‘Animalism’ by Eric Olson11 12 and the ‘Biological View’
by David DeGrazia.13
Giubilini and Minerva seem to be invoking the
Psychological Account of Personal Identity, which maintains
that there is a distinction between ‘human’ and ‘person,’ in
that the former is a biological denotation (Homo sapiens)
while the latter describes, as John Locke puts it, ‘a thinking,
intelligent being, that has reason and reflection, and can con-
sider itself as itself, the same thinking thing, in different
times, and places; which it does only by that consciousness
which is inseparable from thinking, and, as it seems to me,
essential to it’14 (Giubilini and Minerva affirm this distinction
in their paper.) Clearly, many biological human beings
(including fetuses, neonates, the severally mentally disabled,
and those in persistent vegetative states) are not persons in
this sense of the term. In addition, individuals who subscribe
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to this account of diachronic personal identity argue that
persons are persons essentially—that is, that persons only
exist as long as they are persons and therefore have no iden-
tity connection to any part of their lives when they existed as
non-persons (in purely metaphysical terms, according to this
account, personhood is a substance sortal that picks out a
certain ontological kind of being). This means that I would
cease to exist upon becoming a non-person, which need not
happen at physical death or even at conscious death; if I were
to become severely demented, say at the advanced stages of
Alzheimer’s disease, I would cease to exist altogether because
I would not (at that point) be a self-conscious, rational indi-
vidual with a continuous stream of memories. Similarly, I
never existed as a fetus or even a baby, since neither are
persons yet. Because one must possess rather robust traits of
character to be a person in this sense of the term, I didn’t
come into existence until sometime during the toddler years,
and neither did you. Philosopher Mary Ann Warren, who also
subscribes to this view of personal identity, puts it this way:
[W]e are essentially people if we are essentially anything at all.
Therefore, if fetuses and gametes are not people, then we were
never fetuses and gametes, though one might say that we
emerged from them. The fetus which later became you was not
you because you did not exist at that time…[s]o if it had been
aborted nothing whatever would have been done to you, since
you would have never existed.15
Because Giubilini and Minerva share the language that
Warren uses, it seems reasonable to hold that they also share her
assumptions in this regard.
Yet this position is loaded with complications. It difficult to
believe I was never a baby—that the pictures of the 6-month-old
that I have always thought were me was not really me. It is also
hard to believe that I would cease to exist in an advanced stage of
Alzheimer’s disease or any other progressive dementia; indeed,
the fact that many people take great pains to ensure that they will
be well taken care of in such a state illustrates a strong identifica-
tion with this stage of existence. Of course, just because people
feel that they were identical with a neonate or will be identical
with a demented individual is not in itself sufficient to conclude
that they are, in fact, identical with that neonate or demented
individual. However, because this is such a deeply pervasive view
of identity, and one that most people are going to be unwilling to
surrender, the burden of proof lies with Giubilini and Minerva to
present a very convincing argument in favour of such a view (if,
indeed, this is what they mean to argue). Most people will hold
that had they’d been killed as a baby, they would have been
harmed because you were, in fact, killing them at an earlier stage
of their existence.
I have illustrated some philosophical problems in Giubilini
and Minerva’s argument that, I believe, cast doubt as to
whether it is necessary to have the robust mental traits of a
person in order to possess a right to life. But there are also
puzzling, and troubling, practical consequences to their pos-
ition. The mental traits they argue is a prerequisite to posses-
sing a right to life do not appear overnight, and they are not
lost instantaneously either. Is the right to life a gradient right?
Does a 1-year-old have just a little bit of that right—less than
a 5-year-old, but more than a neonate? If an elderly individ-
ual begins the degeneration into Alzheimer’s disease, does her
right to life become gradually weaker? Giubilini and Minerva
attempt to sidestep these questions by passing the buck to
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Response
neurologists and psychologists, but it is up to them to clearly
denote the logical consequences of their views. Moreover,
such a litmus test for attributing the right to life to individuals
excludes a huge subset of the human (and non-human) popu-
lation: not just embryos, fetuses, and neonates, but certain
mentally impaired individuals, individuals in either temporary
or permanent comas, and elderly individuals in the advanced
stages of dementia. In other words, Giubilini and Minerva
take what makes individuals such as these the most vulnerable
(ie, that they have an underdeveloped capacity for rational
thought) and use it to argue that they are not worthy of the
most basic of all rights. It seems to me that the very contrary
is the case: their vulnerability in this regard makes them can-
didates for our care and protection.ii
A DIFFERENT PRO-CHOICE PERSPECTIVE
In another essay, I argued that pro-choice advocates should cease
building their arguments in favour of abortion rights upon the
premise that human fetuses are not persons.16 The reasons I
argue this are fourfold. First, given the vast amounts of ink spilt
on this question, and given the unlikelihood of ever reaching a
consensus on the issue of moral (or even metaphysical) person-
hood, we will never come close to achieving consensus on the
abortion issue by relying on such a deeply controversial premise.
Second, doing so is imprudent. Given the various attempts in the
USA of late by pro-life advocates to pass a Human Life/
Personhood Amendment in their respective state (which, many
have admitted, is an attempt to directly challenge the validity of
Roe v Wade), pro-choice advocates need to be armed with argu-
ments in favour of abortion rights that remain unscathed in the
event that human fetuses are granted the rights of persons.
Third, constantly deriding the lives of human fetuses, and in this
case newborn infants, paints pro-choice advocates as callous and
heartless extremists, and therefore results in our losing the public
relations battle—not just with pro-life advocates, but also with
abortion moderates and even pro-choice advocates themselves,
many of whom hold fetal life in high regard despite their support
of abortion rights. Given the recent onslaught of new policies
designed to restrict abortion access for women, the voice of the
pro-choice community cannot afford to be further marginalised
in public consciousness. Arguing that, essentially, a pro-choice
stance leads to the permissibility of infanticide not only obfus-
cates the intents and goals of the pro-choice movement, but
essentially serves to confirm many of the arguments pro-life
Although this may appear to be, at first, incompatible with a pro-choice
ii
perspective (in that it can be argued that this entails that embryos and
fetuses should also be entitled to care and protection given their
vulnerability), it need not be. My own particular reason for being
pro-choice is mentioned below—that is, I am largely convinced by
Judith Jarvis Thomson’s argument that no person (whether intrauterine
or extrauterine) has a right to use the body of another for sustenance. In
this sense, embryos and fetuses would be entitled to the same care and
protection as any other person—while the vulnerable need care and
protection, that protection can never extend to the point that the bodily
autonomy of another may be violated. A sick patient in need of a bone
marrow transplant, for example, should be cared for and protected as
much as possible, and every avenue available to secure him a bone
marrow transplant should be pursued. However, it would never be
permissible to forcibly extract bone marrow from an unwilling ‘donor’,
and our refusal to do so is not typically interpreted as a refusal to care
for the patient. Similarly, if it were possible to care for an embryo or
fetus without encroaching on another person’s bodily autonomy, then I
would favour pursing that option and, if a fetus survives an abortion,
then I do believe the infant should be given the same level of care and
protection as any comparable newborn.
334
advocates have used against abortion rights for decades. Finally,
deriding fetal and infant life does not accord with the phenomen-
ology of many women who have themselves obtained abortions
but, nevertheless, regard intrauterine life as worthy of moral
value and respect.17–19
Instead, I maintain that an appeal to Judith Jarvis
Thomson’s argument in her ‘A defense of abortion,’ that no
one person’s right to life entails that another person has an
obligation to surrender her body to sustain that life, is a
much more promising route to take, albeit not one entirely
devoid of difficulties.iii 20 Such a stance does not require one
to assert that the fetus is not a person or that the fetus is
devoid of moral rights or moral status; rather, even if we
grant the fetus every single right we would grant an extrauter-
ine person, because no extrauterine person possesses the right
to use another person’s body for the sustainment of life, the
fetus would not possess this right either. A pregnant woman,
therefore, has a right to decide she does not want to use her
body to sustain the fetus’ life, just like I have a right to
decide whether I want to use my body to save your life via
the donation of a non-vital organ or bodily fluids. While
Thomson’s argument has been subject to much critical scru-
tiny,22–24 I do believe that it can ultimately survive that scru-
tiny, although arguing for this is beyond the scope of this
paper. What I want to do, rather, is show how, if Thomson’s
argument is accepted, this goes a long way to drawing a
marked distinction between a fetus and a neonate—one that
does not entail the permissibility of ‘after-birth abortion’.
Thomson argues that the right to an abortion is not the right
to kill the fetus per se but, rather, that it is the right to withdraw
sustenance from the fetus at the woman’s request. The right to an
abortion, from a Thomsonian standpoint, is an incarnation of the
broader right to bodily autonomy—a right that all persons, male
or female, pregnant or not, possess. Throughout the majority of
pregnancy, a woman cannot withdraw aid from the fetus without
causing its death, but that is not to say that, if the fetus could
survive without her sustenance, she then has an additional right
to kill it. Thomson writes:
[W]hile I am arguing for the permissibility of abortion in some
cases, I am not arguing for the right to secure the death of the
unborn child. It is easy to confuse these two things in that up to
a certain point in the life of the fetus it is not able to survive
outside the mother’s body; hence removing it from her body
guarantees its death… But they are importantly different… there
are some people who will feel dissatisfied by this feature of my
argument. A woman may be utterly devastated by the thought of
a child, a bit of herself, put out for adoption and never seen or
heard of again. She may therefore want not merely that the child
be detached from her, but more, that it die. Some opponents of
abortion are inclined to regard this as beneath contempt—
thereby showing insensitivity to what is surely a powerful source
of despair. All the same, I agree that the desire for the child’s
death is not one which anybody may gratify, should it turn out to
be possible to detach the child alive.20
Suppose that you are dying of a blood disorder and need a
bone marrow transplant to survive. I am not required to donate
bone marrow to you, even if my failure to do so results in your
death.25 However, I do not have a right to kill you if it happens
that you can survive without my bone marrow. Notice, nothing
changes about you as a person, or as a bearer of moral status.
iii
For an analysis of Thomson’s argument, as well as an extensive
defence of it, see Boonin.21
Manninen BA. J Med Ethics 2013;39:330–335. doi:10.1136/medethics-2012-100656
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You do not lose your personhood when you are in need of my
bone marrow, or gain it when you are no longer in need of it.
Your status as a person does not change in either case, but what
is owed to you in order to sustain your life does.
Giubilini and Minerva are arguably right that there are no sig-
nificant cognitive differences between a later-term fetus and a
newborn. Like most people, I suspect, this inclines me against
approving later-term abortions rather than toward approving
‘after-birth abortion.’ However, even if one accepts the permissi-
bility of later-term abortion, this still does not entail that they
must accept the permissibility of ‘after-birth abortion.’ Rather,
one can argue that, while in the womb, the fetus’ interest in
continued existence stands at odds with a person’s bodily auton-
omy. Because of the physical, mental and emotional enmesh-
ment of pregnancy between the woman and the fetus, and
because even the best pregnancies require a lot from a woman,
and may even pose a threat to her health, the woman’s interest
in her bodily autonomy supersedes the fetus’ interest in contin-
ued existence. However, once the fetus is born, its interest in
continued existence is no longer at odds with anyone’s right to
bodily autonomy, in which case the neonate’s interest in contin-
ued existence should prevail. That is, the fetus/neonates’ loca-
tion does nothing to change its nature, but it can indeed have
an impact on how to cash out what is owed to it and, therefore,
location does matter in certain respects. Persons may have fewer
rights in prison than they would in the outside world, even
though their moral status does not change. Children may have
fewer rights while living in their parents’ house than they would
if they lived in their own home, but they still remain persons.
Similarly, the fact that the fetus is situated in the body of
another person means that respecting its interest in continued
existence entails infringing upon the rights of another (if the
woman does not want the fetus in her body). No such infringe-
ment exists once the fetus emerges from the womb. If the right
to an abortion is regarded thusly, then this provides a reason for
concluding that, while the fetus may die as an inevitable conse-
quence of a woman’s decision to retract continued sustenance,
the infant may not be killed because its existence infringes on
no one’s bodily rights.
Giubilini and Minerva have not provided any sufficient
reasons for concluding that ‘after-birth abortion’ is permissible.
Given that the prospect of approved infanticide is profoundly at
odds with our deeply entrenched moral intuitions, the burden is
on them to present an extremely convincing argument. Until they
do so, we can conclude that yes, indeed, the baby should live.
A POSTSCRIPT ON CIVILITY
Giubilini and Minerva’s article has received far more attention
in the non-academic realm than most of us ever expect to get
with our publications. All of the essays I have encountered have
been highly critical, and from my understanding the authors
have received death threats. Journal editor Julian Savulescu has
defended the publication of this piece and the authors, and has
rightly condemned the negative attacks that Giubilini and
Minerva have received: ‘What is disturbing is not the arguments
in this paper nor its publication in an ethics journal. It is
the hostile, abusive, threatening responses that it has elicited.’26
I disagree with Savulescu that the conclusions of this essay are
not concerning, and I disagreed with it as strongly in its previ-
ous incarnations in the writings of Peter Singer, Michael Tooley
and Mary Ann Warren (who, in her later years, retracted her
argument that infanticide is intrinsically morally permissible).
However, I completely agree with him that the violent responses
to Giubilini and Minerva are just as, if not more, concerning.
Manninen BA. J Med Ethics 2013;39:330–335. doi:10.1136/medethics-2012-100656
Response
Their conclusion was based on rational argumentation, rather
than immediate visceral and violent responses. None of the arti-
cles I have read condemning them have studied their essay in an
attempt to follow their logic and see where they went wrong (as
I have tried to do in this paper). It is concerning how quick we
are to protest the idea that the vulnerable may be killed by
threatening to kill others.
I believe Giubilini and Minerva’s arguments are flawed, and I
welcome a dialogue with them and others about my response.
However, I defend their right to write it and the Journal of
Medical Ethics’s right to publish it, and I condemn the threats of
violence against them. If we cannot debate each other civilly,
with respect, and with the use of reason in lieu of death threats,
then we have to wonder about the kind of world we are building
for the fetuses and infants whose right to life so many champion.
Acknowledgements Many thanks to my student, Michael Gooch, who first
brought Giubilini and Minerva’s article to my attention, and to my husband
Dr Tuomas Manninen for his comments and editing skills. Many thanks, also, to the
reviewers and editors of the Journal of Medical Ethics for their very helpful
comments, and for encouraging civil and respectful debate and dialogue.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
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Yes, the baby should live: a pro-choice

response to Giubilini and Minerva
Bertha Alvarez Manninen

J Med Ethics 2013 39: 330-335

doi: 10.1136/medethics-2012-100656

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