Version: v1, Published online: 1998
Retrieved October 16, 2021, from https://www.rep.routledge.com/articles/thematic/reproduction-and-ethics/v-1
6. Morality, legislation and rights
At this point we return to the abortion debate, but now under a new aspect and in a way that brings questions about infanticide more clearly to the fore. The most fundamental objection to the conservative position on the status of the foetus is that it puts abortion, at any stage, on a par with infanticide, and, in the usual context of the abortion debate, infanticide equals murder; on the conservative view, abortion in the case of rape is not one whit more justifiable than murdering a child conceived through rape, and arguably less justifiable or excusable (given the innocence of the child) than the woman’s murdering the rapist. But in the context of euthanasia, killing an infant, or allowing it to die, without its consent, may well not be counted as murder, even on a conservative view; not because, quite generally, infants fail to be ‘persons’ with a right to life, who can thereby be killed for any old reason (as Tooley suggests), but because, when a human being is by virtue of extreme youth (or perhaps extreme impairment) incapable of autonomy, ‘paternalistic’ considerations of their welfare form, quite properly, the determining factor (see Life and death).
So even on the conservative view on the status of the foetus, abortion in the form of ‘foetal euthanasia’ may be justified, as infant euthanasia may be; and on any view that ranks the foetus as somehow not quite the same as a born baby, the possibilities of justification increase. But a new twist has been added; ‘euthanasia’ has its motivation built in, since it is done for the sake of the one who dies. Morally speaking, there is all the difference in the world between seeking an abortion because one wants a ‘designer baby’, and seeking it because one thinks it is wrong to bring a disadvantaged child into the world, just as there is a difference between my instructing the doctors to take my mother off life support for her sake, and my doing it to save myself the medical bills. But, given that people can and will lie about their motives, there is no way in which legislation can effectively permit the well-motivated cases but prohibit the callous ones.
Much of the literature devoted to reproductive ethics in fact vacillates between discussing morality and legislation, frequently leaving it unclear which is at issue. This is, no doubt, in part the result of the current tendency to talk almost exclusively in terms of rights, for we tend to think of (moral) rights as things that should be protected by good legislation. But we too readily forget that, particularly within families, it may be morally quite wrong for me to exercise a right that I certainly have, and, more generally, that there is much opportunity within families for acting morally well or ill where questions of rights, and even duties, do not arise. Most reproductive decisions are made by couples who love each other, who discuss what ‘their’ decision will be; the discussion is often extended to other members of the family who will say ‘we’ decided; most of the couples want to be good parents, and morally good people. This is, indeed, how things should mostly be, but none of it can be brought about by legislation, and all of it is almost universally ignored in the current literature (see Family, ethics and the §5).
Hursthouse, Rosalind. Morality, legislation and rights. Reproduction and ethics, 1998, doi:10.4324/9780415249126-L083-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/reproduction-and-ethics/v-1/sections/morality-legislation-and-rights.
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