ASSIGNMENT

(Towards the partial fulfillment of monthly assessment in the subject of Contemporary Debates in Applied Ethics)

Submitted by:Akanksha VIIIth Semester Roll no-710 B.P.Sc (Hons.) L.L.B. (Hons.)

Submitted to:Dr. Asha Bhandari

NATIONAL LAW UNIVERSITY, JODHPUR

ARGUMENTS IN FAVOUR OF ABORTION AND ITS RELATION WITH BENTHAM AND MILLS UTILITARIAN THEORY

INTRODUCTION:The issue of abortion is emotionally loaded and this often makes for poor, not thoroughly thought out arguments. The questions: "Is abortion immoral" and "Is abortion a murder" are often confused. The pregnancies (and the resulting fetus) are discussed in terms normally reserved to natural catastrophes (force majeure). At times, the embryo is compared to cancer, a thief, or an invader: after all, they are both growths, clusters of cells. The difference, of course, is that no one contracts cancer willingly (except, to some extent, smokers -but, then they gamble, not contract). When a woman engages in voluntary sex, does not use contraceptives and gets pregnant one can say that she signed a contract with her fetus1 A contract entails the demonstrated existence of a reasonably (and reasonable) free will. If the fulfillment of the obligations in a contract between individuals could be life-threatening it is fair and safe to assume that no rational free will was involved. No reasonable person would sign or enter such a contract with another person (though most people would sign such contracts with society). Judith Jarvis Thomson argued convincingly ("A Defense of Abortion") that pregnancies that are the result of forced sex (rape being a special case) or which are life threatening should or could, morally, be terminated. Using the transactional language: the contract was not entered to willingly or reasonably and, therefore, is null and void. Any actions which are intended to terminate it and to annul its consequences should be legally and morally permissible. There is little debate that the Mother is a morally significant person and that she is a rightsholder. All born humans are and, more so, all adults above a certain age. But what about the unborn fetus?

Jeff Macmahans , The ethics of killing: Problems at margins of life, (Oxford University Press)

One approach is that the embryo has no rights until certain conditions are met and only upon their fulfillment is he transformed into a morally significant person ("moral agent"). Opinions differ as to what are the conditions. Rationality, or a morally meaningful and valued life are some of the oft cited criteria. The fallaciousness of this argument is easy to demonstrate: children are irrational is this a license to commit infanticide? A second approach says that a person has the right to life because it desires it. Not every immoral act involving the termination of life can be classified as

murder. Phenomenology is deceiving: the acts look the same (cessation of life functions, the prevention of a future). But murder is the intentional termination of the life of a human who possesses, at the moment of death, a consciousness (and, in most cases, a free will, especially the will not to die). Abortion is the intentional termination of a life which has the potential to develop into a person with consciousness and free will. Philosophically, no identity can be established between potential and actuality. The right to an abortion that is often claimed on behalf of all women is a discretionary right to be exercised or not, on a given occasion, as the woman sees fit. For that reason it is sometimes called a "right to choose." If a pregnant woman has such a right, then it is up to her, and her alone, whether to bear the child or to have it aborted. She is at liberty to bear it if she chooses and at liberty to have it aborted if she chooses. She has no duty to bear it, but neither can she have a duty, imposed from without, to abort it2. In respect to the fetus, her choice is sovereign. Correlated with this liberty is a duty of others not to interfere with its exercise and not to withhold the necessary means for its exercise. These duties are owed to her if she has a discretionary right to abortion, and she can claim their discharge as her due. As a discretionary right, a right to an abortion would resemble the "right to liberty," or the right to move about or travel as one wishes. One is under no obligation to leave or stay home or to go to one destination rather than another, so that it is one's own choice that determines one's movements. But the right to move about at will, like other discretionary rights, is subject to

Pence & Gregory Es , Classic cases in medical ethics: Accounts of cases that have shaped medical ethics, with philosophical, legal, and historical background, (Tata McGraw Hill , Second edn., 1995)

limits. One person's liberty of movement, for example, comes to an end at the boundary of another person's property. The discretionary right to an abortion may be limited in similar ways, so that the statement of a specific right of a particular woman in a definite set of concrete circumstances may need to be qualified by various exceptive clauses -- for example, ", . . may choose to have an abortion except when the fetus is viable." Which exceptive clauses, if any, must be appended to the formulation of the right to an abortion depends on what the basis of this discretionary right is thought to be. For example, if a woman is thought to have a right to an abortion because she has a right to property and because the fetus is said to be her property, then the only exceptions there could be to exercising the right to an abortion would be those that restrict the disposing of one's property. What we must realize, then, is that the alleged right to an abortion cannot be understood in a vacuum; it is a right that can only be understood by reference to the other, more fundamental rights from which it has often been claimed to be derived. Classifying an abortion as murder poses numerous and insurmountable philosophical problems. No fetus has a right to sustain its life, maintain, or prolong them at his mother's expense (no matter how minimal and insignificant the sacrifice required of her is). Still, if she signed a contract with the fetus - by knowingly and willingly and intentionally conceiving it - such a right has crystallized and has created corresponding duties and obligations of the mother towards her fetus. On the other hand, everyone3 has a right to sustain his or her life, maintain, or prolong them at SOCIETY's expense (no matter how major and significant the resources required are). Some countries such as Ireland which are followers of strict catholic principles do not allow abortion however the recent death of an Indian origin women due to abortion related complexities forced them to reconsider their laws. In this case due to strict enforcement of catholic principles the mother died even when she could have been saved if timely abortion had taken place thus putting her life at risk which ultimately lead to her death. There is a moral obligation to right wrongs (to restore the rights of other people). If a foetus maintains or prolongs his life ONLY by violating the rights of others and mother objects to it - then that must be killed if that is the only way to right the wrong and re-assert her rights.

3 Harry G. Frankfruts , Alternate possibilities and moral responsibility , (The Journal of Philosophy, Vol.66 , No. 23 , p.829-839)

All human cultures have hierarchies of rights. These hierarchies reflect cultural mores and lores and there cannot, therefore, be a universal, or eternal hierarchy. In Western moral systems, the Right to Life supersedes all other rights (including the right to one's body, to comfort, to the avoidance of pain, to property, etc.).Yet, this hierarchical arrangement does not help us to resolve cases in which there is a clash of EQUAL rights (for instance, the conflicting rights to life of two people). One way to decide among equally potent claims is randomly (by flipping a coin, or casting dice). Alternatively, we could add and subtract rights in a somewhat macabre arithmetic. If a mother's life is endangered by the continued existence of a fetus and assuming both of them have a right to life we can decide to kill the fetus by adding to the mother's right to life her right to her own body and thus outweighing the fetus' right to life. RELATION WITH UTILITARIAN THEORY:Often the continued existence of an innocent person (IP) threatens to take the life of a victim (V). By "innocent" we mean "not guilty" - not responsible for killing V, not intending to kill V, and not knowing that V will be killed due to IP's actions or continued existence. It is simple to decide to kill IP to save V if IP is going to die anyway shortly, and the remaining life of V, if saved, will be much longer than the remaining life of IP, if not killed. All other variants require a calculus of hierarchically weighted rights4. One form of calculus is the utilitarian theory. It calls for the maximization of utility (life, happiness, pleasure). In other words, the life, happiness, or pleasure of the many outweigh the life, happiness, or pleasure of the few. It is morally permissible to kill IP if the lives of two or more people will be saved as a result and there is no other way to save their lives. Despite strong philosophical objections to some of the premises of utilitarian theory - I agree with its practical prescriptions. In this context - the dilemma of killing the innocent - one can also call upon the right to self defense. Does V have a right to kill IP regardless of any moral calculus of rights? Probably not. One is rarely justified in taking another's life to save one's own. But such behavior cannot be

(See "Abortion and the Sanctity of Human Life" by Baruch A. Brody).

condemned. Here we have the flip side of the confusion - understandable and perhaps inevitable behavior (self defence) is mistaken for a MORAL RIGHT. That most V's would kill IP and that we would all sympathize with V and understand its behaviour does not mean that V had a RIGHT to kill IP. V may have had a right to kill IP - but this right is not automatic, nor is it allencompassing. British philosopher Jeremy Bentham (1748-1832) proposed what5 is popularly known as the utilitarian calculus. When determining whether any given action is right or wrong, we must calculate the total pleasure and pain produced by the action. In conducting the utilitarian calculus, we weigh seven specific factors: (1) intensity of the pleasures and pains, (2) duration of the pleasures and pains, (3) certainty of the pleasures and pains, (4) remoteness, that is, how immediately the pleasures and pains will arise, (5) fecundity, that is, whether similar pleasures or pains will follow, (6) purity, that is, whether the pleasure is mixed with pain, (7) extent, that is, whether other pleasures and pains are experienced by other people. One of the most famous defenses of the utilitarian moral theory was given by British philosopher John Stuart Mill (1806-1873), a student of Jeremy Bentham. In the selection below from his book Utilitarianism (1861), Mill gives a precise formulation of the utilitarian principle of morality: actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness. He then explains that happiness means pleasure, and this includes both intellectual and physical pleasures. But the intellectual ones, he argues, are qualitatively better than the physical ones, and we should prefer them because of our natural sense of human dignity. Utilitarianism has been criticized on the grounds that it requires us to cumbersomely evaluate the pleasure and pain resulting from each of our actions. In response, Mill argues that we should not inspect each of our actions for their utility; instead, we should follow general (or secondary) moral principles such as dont steal which we already know will maximize general happiness when followed as a rule. We should only assess the utility of specific actions when were caught between two conflicting secondary moral principles. The utilitarian, however, after noticing the various muddles produced by the intuitionist - the arguments over whether the fetus is a "person", whether one person has the "right" to the use of

www.utilitarian.org/abortion.htm

another's body and/or whether someone has the "right" to determine what occurs in their own body (and in the case of both, the interminable debates as to what is to be done about the dilemma), and whether having sex in the first instance amounts to an "invitation" and the effects of this - might take this issue to be a good example of the inadequacy of intuitionism. [It may also be noticed that utilitarianism avoids altogether a problem which has plagued many attempts to justify abortion from a more conventional moral framework. The problem is this: "if it is sometimes permissible to kill a fetus, where is the dividing-line between this and killing a normal baby (or adult)?" The problem emerges because abortion is held to be sometimes "permissible", but killing a normal baby (or adult) not, and it is quite hard to point to a hard and fast (morally-relevant) distinction: (e.g.) at what stage does consciousness develop? Utility avoids the problem because it does not share the assumptions - it does not say that it is never right to kill a normal baby (or adult), in fact the considerations in each case would be quite similar (with the exception of alarm in the case of adults). Utilitarianism, of the hedonistic variety, is concerned only with pleasure and with pain. Therefore we shall be concerned with the amounts of pleasure and pain in situations where abortion is permitted as contrasted with the amounts of pleasure and pain where abortion is forbidden. It might be suggested that the main consideration would be the interests of the fetus: not only can its future life be expectedly happy (or at least having a balance of happiness over suffering) it might also be the case that the abortion itself is painful, particularly if it occurs later in the pregnancy. However this focus on the fetus is unwarranted: any suffering involved in the abortion itself can be avoided by simply aborting the pregnancy sooner (before the fetus has even developed the capability of suffering), or with painless techniques. The direct suffering of the fetus can therefore be no argument. The second party we might consider are the parents and other family, and guardians if the alternative to abortion is adoption. According to some studies, having a baby appears to decrease the happiness in a relationship - even in those cases where the pregnancy is desired. If a utilitarian found herself unexpectedly pregnant, then it seems that she should get an abortion: if Utility was in favour of her reproduction, she should've been trying to get pregnant, so the pregnancy should not be a surprise. If Utility is against her reproduction, she should have an
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abortion - the mere fact of her personal desires changing, as they might, should not be allowed to prejudice the decision... assuming that the desire is not too strong to be defeated without serious psychological harm, and that abortions are easily available. It must be remembered that the raising of a child in a modern developed country has a very large cost in financial terms, which is highly significant. The amount required to raise one child in a developed country could raise, at a guess, at least a dozen in a poorer part of the world. So if increasing the human population is the aim, this can be achieved more effectively elsewhere. However in these days of increasing environmental pressures, institutionalized animal abuse, and terrible inequality, increasing the human population is not generally what we should be aiming for.