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Fetal Rights

T.D. Campbell and A.J.M. McKay

• University of Stirling and University of Glasgow, Scotland

“Antenatal Injury and the Rights of the Foetus.” Philosophical Quarterly (Scotland) 28 (January 1978): 17–30.

Is it inconsistent to claim, on the one hand, that a child deserves compensation if he is born malformed through injury and negligence done to the fetus, and on the other hand, that the fetus has no rights?

The first claim apparently admits the rights of a fetus. To counter this implication we need a theory connecting rights with interests. Rights function to protect the interests of the bearer of the rights. To say Virginia has a duty she owes to Robin is to say Virginia is obliged to advance and protect Robin's interests. But possession of a right cannot be deduced simply from the fact that Robin has an interest in Virginia's acting in a particular way. In addition we must establish that Robin's interest exhibits the type of moral significance that obliges Virginia or others to protect it by their action or inaction.

We may distinguish two kinds of interests. The first type of interest pertains to conditions needed for a healthy specimen: what can harm it or improve it. Fetuses have this kind of interest (as do plants). However, the second type of interest, moral interest, involves an individual being interested in something with desires, preferences, likes, and dislikes. Only the second type of interests gives rise to moral obligation. A fetus lacks this sort of interest since it lacks desires and purposes. Only when a being shows interests in something does it have rights. Only when a being displays concerns does its harm or benefit have independent moral significance, so that, consequently, rights and duties are owed to it.

There are, however, duties owed “to the child” who does have interests of the proper moral sort. The fetus stands in a causal relationship to the health of the subsequent child. This means that though there are no duties owed to the fetus, there are duties concerning the fetus. (Just as the fact that we owe duties to everyone not to unjustly kill them implies that a builder has duties concerning a building, namely, not to build a faulty structure; the duties are owed to the people but only concern the building.)

That one only owes duties to the child follows from this observation: if we were to assume that no child would be born, the consensus that we have duties to the fetus disappears. Thus no inconsistency arises in asserting that we have a duty to see the fetus is not harmed but no duty to see that the fetus survives. Our duties concerning the fetus are hypothetical, contingent upon assuming that there is a possibility or intention that a child will be born.

This last point, however, raises a problem. If future interests create present duties, why can't the interests of the child-to-be justify the duty not to abort the fetus, on the grounds that the child-to-be will be interested in being born? One way to extricate ourselves from this difficulty is by conceding the possibility that there may be certain interests, or there may be a person that has a bearing in determining our present obligations. But in deciding whether to abort we are deciding whether that possibility exists in a particular case. We can't anticipate the results of our decision in order to make it.