Abstract
I argue that it is permissible for pregnant women to expose their unborn children to risks and injury. I begin with the premise that abortion is permissible. If so, then just as a pregnant woman may permissibly prevent an unborn child from experiencing any future wellbeing, she also may permissibly provide her child relatively poorer prospects for wellbeing. Therefore, it is permissible for pregnant women to take risks and cause prenatal injury. This argument has revisionary implications for policies that prevent medical research and drug use during pregnancy. It also explains why moralistic criticism of pregnant women is unwarranted.
The claim that abortion is permissible, even if the fetus has moral status, raises a puzzle about prenatal injury, which still seems impermissible despite the fact that prenatal injury is less harmful to the fetus than abortion. I argue that it is permissible for women to expose their unborn children to risks and injury during pregnancy for the same reasons that it is permissible for women to terminate their pregnancies.
By this, I mean that women are not liable to be interfered with or punished for exposing unborn children to risks or for injuring them; that women act within their rights if they do; and that, on some accounts of blame, they are not blameworthy. This is not to suggest that there are no moral reasons against prenatal injury. Just as there are moral reasons against abortion, there are moral reasons against risky gestation. My thesis is only that, in both cases, even if a beneficent woman could create a lifetime of wellbeing and value through her procreative choices, she is not required to do so. The argument can be stated like this:
- (1)If a woman terminates her pregnancy, then she prevents the child from experiencing any further wellbeing in his or her lifetime (Bradley 2008).
- (2)It is permissible for a woman to terminate her pregnancy, even if a fetus has moral status (Thomson 1971; Boonin 2003).
- (3)Therefore, it is permissible for a pregnant woman to prevent an unborn child from experiencing any further wellbeing.
- (4)If it is permissible for a pregnant woman to prevent an unborn child from experiencing any further wellbeing, then it is permissible for her to provide an unborn child with poor prospects for wellbeing.
- (5)Therefore, it is permissible for a pregnant woman to make risky or harmful choices that provide a child with only poor prospects for wellbeing.
I defend (1–3) in the first section and (4–5) in the second. In the third section, I argue that women who commit prenatal injury are nevertheless praiseworthy and should not be criticized for prenatal injury.1 In the fourth section, I discuss some implications of this view.
1 Permissible Abortion
I begin with two premises. First, pregnancy is a Samaritan act. Like other Samaritan acts, pregnancy consists in the provision of morally significant benefits to someone who would suffer or be deprived of important goods in the absence of the Samaritan’s assistance. Second, abortion is permissible, meaning that women who choose to end their pregnancies act within their rights and pregnancy is not morally required. In this sense, being pregnant is supererogatory—morally good but not required. In this section, I defend these two premises and respond to objections.
The first premise of the argument is that pregnant women provide fetuses morally significant benefits. If fetuses have moral status, then the Samaritan benefits of pregnancy are clear since pregnant women provide costly, life-sustaining services to their unborn children when no one else can. If fetuses do not have moral status, gestating a fetus still consists in the provision of morally significant benefits insofar as there are moral reasons in favor of creating more value in the world overall. Even if death is not bad for the person who dies, it is still bad from an impersonal perspective because the earlier a life ends, the less happiness, wellbeing, and meaning exists in the world. From this impersonal point of view, infancy and the time before birth may be the worst times to die because so much value is lost (Bradley 2008). Only a mother can support a life in the beginning, so mothers are essential to provide the necessary conditions for an entire lifetime of value when no one else can.
Existing people also benefit from the creation of new lives. Women who have children create the workforce that will support public institutions and welfare programs when existing people grow old and become unable or unwilling to work. For this reason, officials in Japan, Singapore, and France are encouraging their citizens to have more children. Creating each member of the next generation also adds opportunities for knowledge and innovation, for more friends, families, and artists. Many people long to raise children, and creating babies can satisfy this desire. Furthermore, new generations do not struggle against the prejudices and dogmatic viewpoints that their predecessors do. Insofar as the arc of history bends toward justice, new generations pull us forward. Finally, because meaning in life depends in part on the assurance that the human project will continue on without us, the creation of new people is necessary for each existing person to have a meaningful life (Scheffler 2016).
The second premise is that it is permissible for a woman to have an abortion, even though pregnancy consists in the provision of morally significant benefits and even if a fetus has moral status. People who discuss abortion use the words ‘permissible’ and ‘required’ in different ways.2 For my purposes, I use the terms ‘permissible’ and ‘required’ to correspond with people’s enforceable rights. People are not required to refrain from acts that are permissible, meaning that a permissible choice is one that is within the agent’s rights even if she has most moral reason to choose otherwise. This framework allows for the possibility that some permissible reproductive choices could be positively indecent, morally criticizable, or suberogatory because a person can permissibly refrain from doing what she has most moral reason to do in some cases. It also leaves open the possibility that reproductive choices could be praiseworthy and supererogatory.
Following Thomson and Boonin, we can reconstruct an argument for the permissibility of abortion using this sense of the term (Thomson 1971, Boonin 2002). First, women have exclusive bodily rights. No one else has a right to use a woman’s body unless she consents to it. Abortion consists in a woman’s refusing to allow a fetus to use her body or revoking her consent to the fetus’s use of her body. So abortion does not violate the fetus’s rights. If an action violates no one’s rights, then it is permissible. Therefore, abortion is permissible.
This argument for the permissibility of abortion is compatible with the claim that a fetus could have moral status. But even if a fetus has moral status that gives him a right to life, he does not have a right to use a woman’s body to sustain his life. Thomson illustrated this argument by comparing a fetus to a famous violinist who must remain temporarily attached to a bystander’s body to sustain his life (Thomson 1971). The bystander would be permitted to detach herself from the famous violinist, and it would be wrong to force her to remain attached because the violinist is not entitled to use a non-consenting bystander’s body to sustain his life. By analogy, abortion also consists in the refusal to allow another being to use one’s body for survival. Both refusal decisions are permissible. And since people are not liable to be interfered with for choices that are permissible in this sense, legal penalties for people who refuse to sustain the life of a violinist or a fetus would be presumptively wrong in both cases.
One may object to this defense of abortion in three ways. First, one may argue that unlike the violinist, a fetus does have a right to use his mother’s body because the mother is responsible for his conception. Thomson and Boonin provide two effective responses to this objection. Thomson argues that even if a person is responsible for negligently allowing conception, she does not forfeit her right to her body any more than a person who negligently leaves her windows open forfeits her right to her property when a burglar climbs through the window (Thomson 1971, 58). Boonin adds that even when a woman is responsible for conception, she still doesn’t forfeit her bodily rights relative to the fetus because she does not violate a right of the fetus by conceiving him. On his view, a person only owes assistance to someone when assistance would repair the harm caused by her choices. Conceiving a fetus does not make anyone worse off, so there is no harm to repair for (Boonin 2002, 177).
Second, one may object to the claim that interfering with permissible choices is presumptively wrong. For example, some claim that if a person is especially well-placed to provide assistance, and if providing assistance is not very costly, then she may still be compelled to provide assistance, even if she hasn’t done anything else to forfeit her rights (see e.g., Tadros 2011, 131; Savulescu 2007). Thomson is skeptical that it is permissible to compel assistance even when assisting would not be costly. She also replies that even it were permissible to compel assistance in some cases, such a principle would not justify laws against abortion without justifying a range of other laws that interfered with well-placed would-be-Samaritan’s bodily rights whenever assisting was not too costly (Thomson 1971, 2008). But laws or practices that licensed this form of interference this would be excessively burdensome, even if the assistance they compelled people to provide was not. For example, few would accept a practice or law that compelled the provision of such as bone marrow or organs even if providing these bodily services was not especially difficult. So too, such a principle could not justify requiring women to remain pregnant either.3
Third, one may object that it is not permissible to refuse to provide assistance, even if mothers have exclusive rights to their bodies, because they also have duties to assist those in need. Continuing with an understanding of ‘permissible’ and ‘required’ that corresponds to people’s enforceable rights, this objection would claim that mothers have enforceable duties to provide assistance to provide gestational services. In response, proponents of this argument for the permissibility of abortion should deny that there are enforceable duties of assistance more generally. Enforceable duties of assistance would disproportionately burden people (un)lucky enough to be well-placed to provide assistance at low cost. As David Rodin argues, moral relationships should hold all people to the same standards of permission and liability, meaning that each person’s enforceable rights should be matched by others’ enforceable rights to the same. Enforceable rights against interference can meet this standard because all people can equally comply with their duties to respect other people’s rights against interference.4 If there were enforceable rights to other people’s assistance, then the landscape of permission and obligation would not treat everyone equally. It would grant weaker rights against interference to people who did nothing to forfeit their rights but merely happened to be in a position to help.
This more general claim about enforcing assistance is controversial. But a call for single standards of liability to interference coupled with a strong presumption in favor of respecting people’s bodily rights and rights to make intimate and personal decisions is sufficient to establish that abortion is permissible.5 So even if remaining pregnant is not very costly and even when a woman is responsible for becoming pregnant, women who choose abortion act within their rights and are not liable to be interfered with. Together with the claim that pregnancy provides morally significant goods, this argument establishes remaining pregnant is a Samaritan act.
2 Permissible Prenatal Injury
Abortion is permissible because women have rights over their bodies, not the other way around. And the same bodily rights that justify the withdrawal of all life-sustaining assistance for an unborn child, also justify the right to provide an unborn child with lower-quality life-sustaining assistance by making risky or injurious choices during pregnancy. This assertion about prenatal choices poses a challenge to the Samaritan account of pregnancy since prenatal injury seems wrong.6 In this section, I argue that the Samaritan account of pregnancy and arguments for the permissibility of abortion that appeal to women’s bodily rights are not undermined by their implications in cases of prenatal injury because prenatal injury is permissible. I develop this argument in response to the views that hold that abortion is permissible but prenatal injury is impermissible because abortion does not harm anyone with moral status whereas prenatal injury harms or sets back a future child’s important interests. I also consider the claim that prenatal injury is impermissible because people are not permitted to fail to adequately care for those who stand in relations of dependence.
Philosophers sometimes appeal to the intuition that prenatal injury is impermissible to show that abortion is impermissible as well. Harry Gensler claims that abortion is impermissible for the same reason that it is impermissible for a mother to take a drug that will cause her fetus to be blind—because her potential child would not subsequently consent to such a choice (Gensler 1985). Boonin replies that the two cases are importantly different because if a woman chooses abortion, then a future child who is affected by the choice will not exist, whereas a blinding drug would affect an actual child in the future (Boonin 2002). But this reply only establishes that taking an abortion drug is permissible, it does not explain whether or why we should think prenatal injury is permissible.
Following Boonin’s suggestion that it is morally relevant that children survive prenatal injury and not abortion, several philosophers argue that while abortion is permissible, prenatal injury is not. For example, Jeff McMahan suggests that prenatal injury is impermissible because the fetus will subsequently become a person who has an interest in a sufficient level of wellbeing and who is harmed by the injury (McMahan 2003). To make McMahan’s point vivid, imagine an unnecessary drug that causes an unborn child to become very disabled when taken during pregnancy, such as a recreational drug or Thalidomide. McMahan would claim that taking the unnecessary drug is impermissible in this case because it doesn’t just harm the fetus, it harms the future person that the fetus will become, and prenatal injury therefore “violates the requirement of respect for persons” (McMahan 2003, 302).”7
Building on this point, others argue that if mother’s interest in inflicting prenatal injury is so slight and the future child’s interest in avoiding injury is so great that only the strictest deontological commitment to bodily rights could justify the claim that prenatal injury is permissible and that interfering with mothers is wrong in these cases (Savulescu 2007; Wilkinson et al. 2016). These arguments appeal to a principle of temporal neutrality, which holds that “the mere location in time does not accord special significance to a benefit or injury” (Savulescu 2007). So just as it would be impermissible to injure an older child, it is impermissible to injure a fetus in a way that will cause an older child to suffer the negative consequences of prior injuries. Since both forms of injury violate enforceable duties to not injure, people are liable to be interfered with in both cases.
Elizabeth Harman similarly argues that, unlike abortion, taking risks during pregnancy is wrong because it harms a being that has moral status, since a fetus that will become a person has moral status in virtue of his future personhood (Harman 1999). Harman argues that excessive drug and alcohol use during pregnancy is impermissible when it will cause a future child to experience pain and disability, which are intrinsically bad. On her view, conferring great benefits to someone cannot justify causing them to experience these bad states. So even though women are not required to remain pregnant, women are required to refrain from creating children who will have intrinsically bad experiences like pain and disability even if their children would also have good lives on balance.8
Though these arguments may establish that there are some moral reasons against prenatal injury, they do not establish that prenatal injury is impermissible in the aforementioned sense of the term. Nor do these arguments establish that there are decisive moral reasons against prenatal injury or that women who injure their fetuses are criticizable. For now, I will focus on whether these arguments show that prenatal injury is impermissible. In the next section I will address whether arguments like these show that prenatal injury is criticizable.
On my view, just as it is generally impermissible to kill a person but not impermissible to have an abortion, it is generally impermissible to injure or cause a non-consenting person to become disabled but prenatal injury is not impermissible.9 Because fetuses live inside mothers’ bodies, judgments about prenatal injury should be informed by arguments in favor of the permissibility of abortion, not arguments against injuring people or causing disability.10 For these reasons, those who maintain that abortion is permissible should maintain that prenatal injury is permissible too.
To the extent that the aforementioned arguments conclude that prenatal injury is impermissible, they are assuming that it is impermissible to create a gestational environment that causes a person to be born under unfavorable conditions. But these arguments cannot support the claim that prenatal injury is impermissible without denying the permissibility other, seemingly permissible, maternal choices in a range of other non-abortion cases. For example, imagine a pregnant Somali woman decides to give birth and raise her child in Somalia, where there is poor nutrition and limited prenatal care, even though her uncle arranged for her to move to the UK before the birth. Is she required to flee her home country because Somalis have a lower quality of life and shorter life expectancy? It is true that her future child will have a strong interest in growing up in the UK, where he is likely to experience better health, longer life expectancy, and other benefits. Nevertheless, the mere presence of a future child’s interest in living in the UK is insufficient to override a mother’s right to remain in Somalia or to justify restricting a mother’s freedom of movement or association. Though it would be impermissible to injure an older child causing disability or to deport a child from the UK to Somalia, it is not similarly harmful to provide a prenatal environment that results in an older child having a disability or living in Somalia.
Arguments that prenatal injury is impermissible in the same way that causing harm later in life is impermissible unjustifiably characterize prenatal injury as a harmful act rather than a failure to benefit. They assume that inflicting prenatal injury causes the frustration of a future child’s interests or some other harm, rather than allowing these events to occur and failing to prevent them. But the distinction between doing and allowing (or causing harm versus letting harm happen) is moralized. As Fiona Woollard argues, “whether an agent counts as doing harm or merely allowing harm depends on facts about what belongs to whom (Woollard 2013, 323).” If women’s bodies belong only to them, then it is a mistake to characterize cases of prenatal injury as harmful in this way.
Imagine a rock climber falls and his partner catches the rope. Realizing that the climber is too heavy, the partner lets go. The partner did not harm the climber even though his actions caused the climber to be disabled or dead (Cartwright 1996). Like the rock climber’s partner, each pregnant woman is engaged in a slow rescue.11 Some women slip up or lose their grip. They prioritize themselves over the safety of the fetus. A woman who has an abortion drops the rope: she withdraws life-sustaining services in a way that results in the death of the fetus. A woman who uses alcohol or drugs while pregnant causes an injury. But women who have abortions or use drugs and alcohol do not violate the rights of their unborn children. Even if fetuses have bodily rights, as the rock climber does, refusing to rescue is permissible because a person’s bodily rights do not entail positive rights to rescue services from another person.
One may reject this conception of harm and argue, as Harman does, that prenatal injury is impermissible because women have a duty not to place beings with moral status in intrinsically bad conditions. But as above, this conception of harm would also characterize a range of procreative choices as wrongful. For example, on this view it would also be impermissible for people with debilitating or disabling genetic conditions to procreate. More generally, since Harman clarifies elsewhere that she is focused mainly on whether a choice is pro tanto harmful, her view may also prove too much if applied to the ethics of prenatal injury because all procreation consists in exposing a being that has moral status to the non-comparatively harmful experiences of pain, disability, or death.12
In addition to these arguments against harming, Savulescu also argues that mothers can have enforceable duties of easy rescue to provide morally significant benefits to their future children when it is not costly to do so (Savulescu 2007). Another way to put this is that women don’t just have duties to avoid doing harm, they also have duties to prevent injuries when they easily can. This argument relaxes the moral distinction between doing harm, which is impermissible, and allowing harms, which is permissible. So even if prenatal injury is best characterized as allowing harm, if permissibility depends on the balance of interests rather than the rights at stake it could still be impermissible in some cases. In the previous section, I argued against the view that refusing to provide assistance is impermissible, partly on the grounds that a requirement to assist would be disproportionately burdensome to people who were well-placed to help. Additionally, relaxing the distinction between doing and allowing harm would undermine the presumption against “intruding on what is properly ours” for the sake of the needs of another, a presumption which is necessary for people to have genuine authority over their own bodies (Woollard 2013, 317).
But even granting Savulescu’s conception of permissibility, it still would be a mistake to weigh a future child’s interest in being uninjured only against his mother’s interest in making an injurious choice. Women also have interests in not being interfered with and more general interests in bodily integrity. Furthermore, just as in cases in which a mother conceives under conditions that cause disability, when mothers injure fetuses, they change their future children in ways that affect how those children conceive of their interests, and it is not always against a person’s interests to have been disabled from birth (Barnes 2014).
Another way of justifying maternal duties to avoid prenatal injuries is by an appeal to the intimacy of maternal-fetal relationships. On this view, a person in an intimate relationship can be required to provide assistance to people in need when doing nothing would have been permissible in the absence of the relationship. Pregnancy is certainly an intimate relationship, but as Margaret Little argues, whether the intimacy of pregnancy grounds a mother’s duties to assist depends on whether she understands this intimate relationship as primarily a biological connection or whether she conceives of it as a “deeper relationship” (Little 1999). Little argues that if a mother is not open to and does not consent to the duties that correspond to a deeper parental relationship, she does not have duties to continue gestation. For the same reasons, a mother also would not have duties to continue to provide higher-quality gestational services.
Alternatively, one may claim that it is not intimacy but relationships of dependency that justify maternal duties to provide high quality gestational services. Savulescu develops an argument like this to explain why mothers who choose to continue their pregnancies have enforceable duties to provide life-saving or beneficial assistance, even if people do not generally have duties of assistance (Savulescu 2007). Jeremy Snyder develops a similar argument about relationships of economic dependency (Snyder 2008). He argues that relationships of dependency generate special duties of assistance because failing to provide adequate conditions for dependents would show an unacceptable disregard for a specific person’s basic needs (Snyder 2014).
But if anything, the fact that a specific person is dependent on another seems to show that the benefactor is regarding the person’s basic needs to a greater extent than anyone else. If the presence of a relationship of dependence carries any moral weight, it still does not establish heightened special duties to provide assistance. Such a relationship is instead evidence that someone is providing a person in need with more assistance than anyone else. The claim that providing for dependents is an enforceable requirement is even less plausible since people do not forfeit their rights by benefiting the needy when no one else can or will. Return to the example of the falling climber and his partner. Imagine the partner temporarily saved the climber, but then became fatigued. Even if he shouldn’t let go, it would nevertheless be wrong for a bystander to threaten to assault the partner when he considered it. To say otherwise suggest that people who take on dependents forfeit their rights by doing so. While such a view would justify a requirement to refrain from prenatal injury, it would also justify restrictions on women’s rights to have abortions while affording greater immunity to people who are fully indifferent to the needs of others than to caregivers who take on dependents.
A final consideration against the permissibility of prenatal injury is that some cases of prenatal injury display a kind of malice or selfish disregard for a child’s life and that it is impermissible to act on malicious or selfish reasons. As I am using the term, permissibility refers to acts which are within a woman’s rights. If a person has a right to do something she has a right to do it out of malice or selfishness too.13 On the other hand, there may be moral reasons against malice or selfishness that would make the act supererogatory or suberogatory. In the next section, I will address these other kinds of moral reasons as they relate to pregnancy.
I grant that it is counterintuitive to claim that mothers who take serious risks while pregnant act within their rights and are not required to do otherwise. But the claim that women are required not to take these risks during pregnancy has counterintuitive implications too. If an alcoholic mother refuses to have an abortion and her child is born with fetal alcohol syndrome, can the child blame or otherwise sanction his mother? Imagine an obese woman who doesn’t lose weight while pregnant. Her child faces a significantly higher risk of developing type 1 diabetes because the mother was obese. When her child is born, he develops moral status and then develops diabetes. To the extent that blame is a sanction, can he blame his mother for failing to lose weight while pregnant? A pregnant woman who drinks excessive amounts of alcohol and remains pregnant, fails to lose weight, or chooses to live in Somalia acts within her rights, even if her unborn child has moral status in his own right or in virtue of the person he will become.
Those who reject the claim that abortion is permissible in all cases may reject these conclusions about prenatal injury as well. But they should nevertheless adopt the weaker claim: whenever it is permissible for a woman to choose abortion, it is also permissible for her to choose to injure the fetus whenever the costs of remaining pregnant or refraining from prenatal injury are comparable.14 And, as I will show, this weaker claim would still have revisionary implications for the current approach to prenatal injury.
3 Pregnancy and Praise
The argument that pregnancy is supererogatory and abortion is permissible appeals to a distinction between permissibility and requirement on the one hand and praiseworthiness and criticizability on the other. My central claim is that abortion is permissible, so prenatal injury is too. But the fact that a decision is permissible doesn’t imply that there are no further moral reasons for or against it. My secondary claim is that pregnancy is supererogatory, meaning that there are further moral reasons in favor of it.15 But in cases of prenatal injury, one could maintain that prenatal injury is permissible but suberogatory when it is due to choices like recreational drug use. While I agree that there are some moral reasons against committing prenatal injury, I will argue that prenatal injury is not suberogatory because even under these conditions, pregnancy is supererogatory.
Prenatal injury may seem, if not impermissible, suberogatory. Return to the climbing analogy. It may be permissible to provide only limited assistance to people in need whenever providing no assistance is also permissible. But one may still maintain that if the partner merely slowed the fall of the climber, thereby breaking his legs, then she would be criticizable if she could just as easily have stopped his fall entirely and saved him without injury.16 By analogy, prenatal injury would be suberogatory in the same way that providing a low-quality rescue service is.
Yet presumably on this view, the partners’ failing to rescue the climber at all would be more criticizable, and also suberogatory. And so, the analogy would also characterize relevantly similar cases of abortion as suberogatory as well. Some philosophers accept this conclusion about abortion, and argue that it is criticizable when it displays a kind of carelessness, indifference, or what Thomson calls ‘indecency’ (Thomson 1971; Driver 1992). But this judgment seems to hold women who fail to provide life-sustaining assistance to much higher standards than the standards of criticism that apply to most people who are well-placed to save another’s life, such as people who are rich enough to save lives through charitable giving or surgeons who are skilled enough to save more lives by working through the weekends.
Furthermore, even if abortion were suberogatory, arguments for the claim that prenatal injury is suberogatory also overlook the good that pregnant women do and hold them to overly demanding moral standards. Just as it would be inappropriate to criticize someone for an injurious rescue when they had no duty to rescue the climber at all, assessments of praiseworthiness or criticizability during pregnancy should depend on the overall good achieved through gestation when a woman could have permissibly refrained. Standards of criticism should not depend on the degree to which a woman’s pregnancy matches some unattainable ideal. Since women who commit prenatal injury still provide morally significant benefits on balance, and so like other imperfect rescuers, they still praiseworthy on balance.
At this point, the arguments from the previous section reemerge in the domain of praise and criticism. For example, a proponent of McMahan’s position could argue that one needn’t claim that abortion is suberogatory in order to maintain that prenatal injury is suberogatory. An argument for this position might go like this. People are typically criticizable for making other people worse-off but they are not typically criticizable for failing to create people who will be well-off. People who commit prenatal injury make their future child worse off because the child would otherwise have been uninjured. People who choose abortion prevent a future child’s existence. Therefore, people are criticizable for prenatal injury but not for abortion because deciding to continue a pregnancy doesn’t make anyone better off (since deciding not to continue a pregnancy would prevent the child’s existence) but prenatal injury would make a child worse off.17
And here again, I deny that prenatal injury does make a child worse-off. To see why, notice that the argument against prenatal injury assumes that in the absence of prenatal injury the child would have experienced a higher-quality gestational environment and a better life. But imagine a woman who switched from using alcohol, which can cause Fetal Alcohol Spectrum Disorders, to smoking, which increases the risk of low birth weight and Cleft Palate. On this view, even if her child was born with a Cleft Palate, his mother benefited him by switching to smoking because counterfactually she would have subjected him to a greater risk. One may reply that smoking was still harmful, it was just a lesser harm than alcohol use. But then it is difficult to draw a line, since all pregnancies involve some level of avoidable risk so all pregnancy would harmful to the future child. This example shows that there is a range of environments that a mother can provide and judging prenatal injury relative to a counterfactual of injury-free pregnancy requires further justification, especially because it establishes a presumption that all risky choices in pregnancy are harmful relative to this ideal. If so, then cases of prenatal injury are not morally distinctive except in the degree to which they fall short of a maximally beneficial pregnancy.
Consider an analogy to cases of conception. One may argue that there is no person-affecting reason to create a person but that if a person is created then there are impersonal reasons to ensure that he has a life worth living and that people who fail to ensure that the child has a life worth living are criticizable for adding more suffering to the world. I agree with these standards of criticism. There are also impersonal reasons to ensure that each child has the best possible life. But as long as a child’s life is beneficial on balance his existence is impersonally justified, so people should not be criticized for creating him. Similarly, if a fetus lacks moral status but will become a child that has moral status, then same standard ought to apply to cases of gestation. It may be criticizable to increase the amount of suffering in the world by creating a child whose life is not worth living, but short of that, people should not be criticized for failing to create the best possible life.
One may reply these cases are not analogous because conception determines which child exists whereas a fetus will be the same child whether he is or isn’t injured before birth. A person cannot be made worse-off through sub-optimal conception or abortion because he would not have existed were he not conceived and gestated. But a person can be harmed by prenatal injury because he would have existed either way. And if decisions that make people worse off are criticizable, then prenatal injury can be criticizable while conception and abortion are not.
A comparative understanding of harm is insufficient to establish that prenatal injury is criticizable though, because not all decisions that make people worse off are criticizable. For example, failures to benefit people make them comparatively worse-off than they would be, but failure to benefit is not presumptively criticizable (Bradley 2012). So merely making a person comparatively worse-off in some sense is not enough to establish grounds for criticism. On my view, prenatal injury consists in a failure to provide a higher-quality gestational environment to a fetus. To the extent that prenatal injury is harmful, it is harmful in the sense that failures to benefit are harmful, not in a way that is presumptively criticizable. Alternatively, the claim that a person is harmed is sometimes meant to indicate that the person was not only made worse-off, but they also had a right that was violated. People who violate rights are criticizable, but as I argued in the previous section, prenatal injury does not violate a child’s rights so it is also not criticizable on these grounds.
There are also other reasons to reject the claim that pregnant women’s injurious choices are suberogatory, especially given the context of most cases of prenatal injury. First, popular intuitions about pregnancy are potentially colored by unjustified prejudices. Drug users, disabled people, obese people, poor people, and women—especially women who have sex—have historically been denounced for their permissible choices when denouncement was unwarranted. These considerations debunk or at least call into question intuitions that prenatal injury is criticizable.
Second, if pregnancy were generally praiseworthy because it consists in the provision of life-sustaining benefits but women were criticizable for failing to provide sufficient life-sustaining benefits, then other people who provided some but insufficient life-sustaining benefits to people who had no right to them would be similarly criticizable. But, as I argued in discussing whether it is permissible to insufficiently benefit someone in a relationship of dependency, those who provide some benefits are at least more praiseworthy than those who provide none. And children who are born with disabilities or ailments related to prenatal injury still generally have lives worth living. To the extent that women are not criticizable for choosing abortion or for having children under other unfavorable conditions, they should not be criticized for creating lives that are worth living but not as great as they might have been.
Relatedly, whether blame is a sanction or merely a form of criticism, it ought to be informed by moral considerations, just as legal sanctions are informed by facts about liability and norms of praise and criticism are informed by moral reasons. Both sanctioning and criticism are inappropriate when issued hypocritically. People who blame should not hold others to higher moral standards than they apply to themselves (Wallace 2010). When people blame women for fetal endangerment or prenatal injury, they act hypocritically to the extent that they do not and would not similarly provide someone in need with the morally significant benefits that an entire life worth living entails were they well-placed to do so. I suspect that most people who would blame or disparage women for prenatal injury do not hold themselves to the standards of generosity this view would imply.
One may worry that my claim that all pregnancy is supererogatory implies that women have moral reasons to create as many children as they can. It does, but this isn’t something to worry about. Though procreation is not required, women have moral reason to bring about a world that contains highest total amount of well-being. This may involve bringing about a world full of people whose lives are barely worth living but which contains the most possible well-being through its large population, a scenario that Derek Parfit called the Repugnant Conclusion (Parfit 1986). I do not think this scenario is repugnant, so I do not take it to be a reductio of the argument that pregnancy is praiseworthy, even in cases of prenatal injury.18 Rather, of all the implications of utilitarianism, the claim that it is good to create a world full of children who are glad to be alive strikes me as one of the less repugnant conclusions.
These arguments affirm the claim that women who make risky choices during pregnancy should not be criticized or blamed because they still do more good than other people than women who choose abortion. Recall the analogy of the falling rock climber. Even if his partner rescued him in a way that unnecessarily caused injury without violating the climber’s bodily rights, the climber nevertheless ought to be grateful for the assistance and the partner praised for the rescue. At the same time, the climber or a third party may judge that the partner ought not be relied on to provide assistance to the climber going forward. So too, public officials may judge that women who expose their unborn children to significant risks should not retain parental rights after birth since parental rights are justified by a child’s rights or best interests (Warren 1989; Dare 2009). Though even if in rare cases withholding parental rights from parents who commit prenatal injury could be warranted, it would be a mistake to infer from this fact that a woman acted wrongly during pregnancy.
4 Implications
A final worry is that normalizing prenatal injury would have bad effects. I think this is the wrong kind of reason to reject the claim that prenatal injury is permissible, but even if it were relevant, this is an unjustified empirical objection. To close, I will briefly discuss the implications of the claim that prenatal injury is permissible for five cases: pharmaceutical research and prescribing, criminalization of fetal endangerment, pregnancy, birth, and parenting. These arguments show that accepting the view that prenatal injury is neither impermissible nor morally criticizable would not only insulate pregnant women from unwarranted criticism and sanction, but it may also have good effects.
First, physicians’ and researchers’ reluctance to put fetuses at risk of prenatal injury stands in the way of pregnant women’s access to effective treatment. In the twentieth century, medical research for women was worse because all women of childbearing age were excluded from most trials out of concerns about fertility and prenatal injury (Liu and Mager 2016). Even today, these misguided concerns persist and result in lower quality care for women.19 Physicians are reluctant to support treatment for pregnant women who suffer from mental health conditions, even when their refusal puts women and their children at risk. Institutional review boards stand in the way of research that could improve treatment for pregnant patients. As a result, sick women are unable to make informed choices about their treatment options and must use drugs off-label. In extreme cases, excluding women from a trial also prevents them from accessing the potential means to preserve or save their own lives by accessing potential cures. In any other circumstance, the fact that participating in a potentially beneficial trial would prevent a patient from providing as many benefits as possible to those who depend on her would not be a criterion for exclusion. So too, pregnant women should not be denied participation in trials out of concerns about prenatal injury.
Second, pregnant women who use drugs recreationally are also harmed by policies that empower officials to interfere with their right to make decisions about their bodies out of concerns about prenatal injury. In general, criminal penalties for recreational drug use are unjust because recreational drug use is not morally wrong and criminal penalties are so harmful that they cannot be justified on paternalistic or public health grounds (Husak 1992). But even if drug prohibition were permissible, additional criminal penalties for recreational drug use during pregnancy would not be.20 Existing laws against chemical fetal endangerment and prenatal injury through drug use are mainly unjust because they subject non-liable pregnant women to criminal penalties (often in ways that discriminate against economically vulnerable or socially marginalized women). But these policies also do more harm than good because they undermine relations of trust between women and physicians and discourage people from seeking prenatal care (ACOG 2011).
Moreover, the risks of recreational drug use during pregnancy are often overstated, especially regarding drugs that are more frequently used by members of already stigmatized groups (Hurt et al. 1997; Ortiz and Briggs 2003). Such statutes also incentivize abortion in cases where children might have otherwise existed and had lives worth living. This final consideration against fetal endangerment statutes is especially notable because these laws are most often enforced in states that also pass legislation to deter abortion.
Third, women who take only moderate risks while pregnant are stigmatized and shamed for their choices, even when those choices are very unlikely to affect a fetus (Oster 2014). Criticizing pregnant women not only causes undue stress and sadness during pregnancy, it is also an inappropriate response to a person who is providing such significant benefits. Even mothers who refrain from any kind of drug use are harmed by the stigma of prenatal injury. Pregnant women are constantly informed by friends, family, and strangers of the many ways that they are harming their unborn children—by working in a stressful job, by exercising, by not exercising, by sleeping on their backs, by passing through airport scanners, by eating lunchmeat or sushi, by using non-organic cosmetics, by wearing high heels—the list goes on. The argument that prenatal injury is not wrong ought to mute the constant chorus of social reproach and informal sanctioning that pregnant women currently endure.
Fourth, the same considerations that protect women’s rights to make risky choices during pregnancy also protect the right to make risky choices during childbirth, such as the right to refuse surgery, to attempt a vaginal birth after a caesarean section, to refuse an episiotomy, and to use potentially harmful drugs during birth. Acts of obstetric violence that force women to undergo medical procedures out of concern for their unborn child’s interests are often traumatic, and these procedures violate women’s more general rights against medical battery (Flanigan 2016). The preceding case against interfering with women who commit prenatal injury explains why women are not liable to be interfered with during birth.
Finally, just as the foregoing argument calls for a greater appreciation of the benefits pregnant women provide through gestation, it also calls for a greater appreciation of any parent (including adoptive parents) who devotes his or her time and energy to making a child’s life better than it would have been otherwise. Parenting is not only a fun and rewarding personal project. Like pregnancy, parenting also benefits a child who is likely to have a life that is worth living and it benefits other existing people.
5 Conclusion
It is easy to overlook the value of pregnant women’s labor. Even when mothers fall short of creating the best new lives, or as many new lives as they could, we still owe them gratitude. This argument calls for going easy on seemingly reckless or negligent pregnant women. Like the rest of us, every pregnant woman could do better. But they lend their bodies to serving someone else when no one else can. Holding a pregnant woman to excessively high moral standards is disproportionate and disrespectful. Well-intentioned people who act on their concerns about prenatal injury do not benefit actual mothers and babies. Instead, all women should be supported and praised for the good they do by creating a lifetime of happiness, value, and meaning, which benefits us all.
Acknowledgements
I presented earlier versions of this paper at Sacramento State University, The Baylor College of Medicine, Brigham Young University, Princeton University, Davidson University, and the 2017 Rocky Mountain Ethics Conference (RoME). I am very thankful to the participants at these talks for their insightful feedback. I am especially grateful to David Wasserman, Elizabeth Harman and David Boonin, who provided extensive comments on earlier drafts.
Biographical Note
Jessica Flanigan is associate professor of Leadership Studies and Philosophy, Politics, Economics and Law (ppel) at the University of Richmond, where she teaches Ethics and Critical Thinking. Her research addresses the ethics of regulation, law enforcement, and paternalism.
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I argue that since most children’s lives are on balance worth living, even a pregnancy that includes prenatal injury is beneficial on balance, and therefore praiseworthy. There is one potential caveat to this argument, in cases where prenatal injury causes a child to have a life that is not worth living. In this case, a mother does not provide morally significant benefits on balance, so her action could reasonably be considered suberogatory. Still, even in these cases I am inclined to hold that women act within their rights, just as a mother would act within her rights if she declined to end a pregnancy when she knew that her child has a genetic condition that would result in a life not worth living. I am thankful to Peter Singer for prompting me to clarify this aspect of the argument.
In “Duty and Enforcement” I address these different meanings of permissibility (Flanigan 2018). Some people may use the term ‘permissible choice’ synonymously with ‘the right choice’ or ‘the best choice.’ I do not use the term in this way because such a characterization would mean that my decision to go to yoga on Tuesday nights instead of taking that time to tutor refugee children was an impermissible choice. Instead, in discussions of permissibility I am focused on standards of liability and enforcement. This is not to say that my analysis is limited to legal enforcement. To the extent that blame is a sanction that is used to enforce moral rules, this conception of permissibility can also characterize some actions (e.g. promise breaking) as ethically impermissible though legally permissible.
For a discussion of this claim regarding bone marrow, see the case of McFall vs. Shimp (10 Pa. D. & C. 3d 90 1978). Cecile Fabre challenges this claim: (Fabre 2006). Though Savulescu agrees with Thomson in this case, regarding similar arguments for the permissibility of prenatal injury Savulescu instead endorses laws that compel low-cost assistance in other cases (Savulescu 2007).
Rodin writes that ‘rights against harm arise from reciprocity in actual compliance’ meaning that your duties not to harm arise toward whomever is satisfying those very same duties with respect to you at the time (Rodin 2014, 296).
Some readers may still reject the second premise of this argument, which is a fairly liberal position on abortion. Yet the following argument still has something to say to these readers for cases of prenatal injury. Namely, in those conditions in which abortion is permissible, then under those same conditions, prenatal injury is permissible as well.
I will use the term ‘prenatal injury’ to refer to instances in which a mother causes illness or disability to an existing fetus that the fetus will experience after birth. Other cases of prenatal injury are typically wrong because they violate a mother’s bodily rights as well.
Though McMahan acknowledges that laws against prenatal injury may not be justified on the grounds that they could be “excessively invasive or women’s privacy” he maintains that women nevertheless do not have rights to commit prenatal injury (Bradley 2012).
Elsewhere, Harman clarifies that it is impermissible to cause a being that has moral status to experience intrinsically bad states, such as the pain and suffering associated with prenatal injuries (Harman 2009). Shiffrin defends a similar view (Shiffrin 1999).
In addition, injuring or disabling a person also violates the person’s bodily integrity and the transition from being able to disabled is costly to the person (Barnes 2014). But a fetus does not have rights of bodily integrity (since women are not required to refrain from having abortions) and cannot experience transition costs.
For a further argument against importing judgments about the permissible treatment of individuals into debates about the ethics of abortion and gestation, see (Little 1999)
One may reject this analogy on the grounds that the climber will die without the intervention of his partner but a fetus will be born without injury if their mother doesn’t do anything. But this characterization implies that gestating is analogous to doing nothing rather than holding the rope. I characterize pregnancy as analogous to holding the rope because pregnancy consists in the active provision of bodily services. Another disanalogy is that the climber exists before his partner catches the rope whereas a fetus does not exist before pregnancy, but this disanalogy does changes the ethical dimensions of the case as long as in both cases there is no prior agreement to hold the rope/rescue/gestate even if the rescuer/mother knowingly grabbed the rope/remained pregnant.
As Ben Bradley has argued, it is also difficult to explain why death is bad on the non-comparative account of harm because death is not experienced by anyone and non-comparative accounts of harm cannot cite the depravation that death causes (Bradley 2012).
The claim that intention doesn’t bear on permissibility entails this claim but is not necessary to justify it in this case. For a further discussion of why intention would not bear on permissibility, see (Scanlon 2010). For an argument for the claim that a mother’s intention can bear on the permissibility of prenatal decision-making, see (Barnes 2014).
I am thankful to David Boonin for prompting me to address this possibility.
Some people object to the secondary claim that pregnancy is supererogatory because they deny that pregnancy provides morally significant benefits to unborn children and existing people. For example, David Benatar argues that it is no great benefit to be created and that people who claim their lives are good on balance are mistaken. Sarah Conly argues that adding too many people to the world makes existing people worse off because new people would strain public services and environmental resources. These objections to the claim that pregnancy is a supererogatory Samaritan act can clarify the nature of my subsequent argument. Benatar and Conly agree that abortion is permissible but claim that it can be morally criticizable. If they are right, then all pregnancy, including but not limited to prenatal injury, would be suberogatory. Benatar and Conly sometimes suggest that pregnancy is impermissible in light of the moral reasons against it. Yet the foregoing arguments in favor of the permissibility of abortion also weigh in favor of the permissibility of pregnancy, even if there are moral reasons against it.
I am thankful to an anonymous reviewer for suggesting that I address this variation on the case.
I am thankful to an anonymous reviewer for encouraging me to consider this argument.
The seeming repugnance of a crowded world may reflect a bias in favor of the status quo and an inability to comprehend vast numbers of people whose lives are very different from our own. (Tannsjo 2002). Similarly, judgments against prenatal injury may also be explained by a bias in favor of the status quo. In the past and in some developing countries today, pregnant women subject their children to a very low quality of life simply by having children in adverse conditions, but since more favorable conditions are unavailable, their choices are not deemed suberogatory, even when they could also refrain from pregnancy.
Pregnant women’s exclusion from trials is common because ethics committees and researchers currently use a dual patient standard to assess whether the risks of testing an investigational drug on pregnant women exceed the benefits, meaning that risks to both the fetus and mother are considered. This standard is difficult to meet, in part because pediatric trials are held to heightened standards of acceptable risk than trials for consenting adults.
At some point, 45 US states have prosecuted drug users for prenatal injury. Three states also allow for civil commitment of pregnant drug users in order to protect fetuses from harm. For an overview see (Mir, Dixon, and Pro Publica 2015).