Property Rights of Fetuses: Ontological Problems in the Deprivation Argument against Abortion

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Of the many and varied arguments maintaining that abortion is morally on keel with murdering an adult human, the deprivation argument against abortion is the most deserving of philosophical attention. The most noteworthy aspect of the argument is its attempt to prove the immorality of abortion while avoiding the issue of personhood altogether. The essential claim of the argument is that aborting a fetus ¹ deprives it of its future which is valuable, and since depriving the fetus of something valuable is immoral, then abortion is immoral. In this essay I argue that the deprivation argument against abortion (‘deprivation argument’) cannot achieve its aim as it stands. Ultimately, the argument is question begging; the argument assumes that it is immoral to deprive a fetus of something valuable, but gives us no reason to suspect that a fetus is the type of thing from which it is wrong to take valuable things.

The form of this piece shall be relatively straightforward; first, I shall give a brief account of the deprivation argument and some of the specific versions. Then we shall see how all of these formulations share the same fault of assuming their own conclusion.

1. The Deprivation Argument against Abortion

The deprivation argument is simple on first glance. It roughly goes as follows:

P1 – A fetus has a future that is valuable.
P2 – An abortion deprives that fetus of its future.
P3 – Depriving a fetus of something valuable is immoral.

C – Abortion is immoral.

This appears to be a plausible account of the immorality of abortion—if abortion is immoral—but the argument needs some clarification if we are to grasp the different ways in which the deprivation argument can proceed.

I.i. Marquis, Stone, and Feldman

The three versions of the deprivation argument that I am using in this piece are put forth by Don Marquis, ² Jim Stone, ³ and Fred Feldman. ⁴ Each of these pieces puts forth a different version of the deprivation argument; however, I will show that they all share the same question begging nature.

Marquis asserts that the reason abortion is wrong is the same reason it is wrong to kill you or me. On Marquis’s account, killing is wrong because of the victim’s loss of life, which is (presumably) one of the greatest losses one can suffer. ⁵ The loss consists not only of the total value one’s life holds now, but the total value that one would have had in the future were one not killed. ⁶ Since a fetus typically has a future outside of the womb which will contain value (or in Marquis’s terms a “future like ours”) the same line of reasoning that applies to the adult applies to the fetus. Marquis therefore concludes that the “correct ethic of the wrongness of killing can be extended to fetal life and used to show that there is a strong presumption that any abortion is morally impermissible.” ⁷It should be mentioned that there has been an effective critique of Marquis’s claims based on an equivocation of the term ‘loss’ throughout his piece put forth by Walter Sinnott-Armstrong. ⁸ However, this is not a fault shared throughout all deprivation arguments so it will not be included in the subsequent discussion.

Stone’s account is generally similar to Marquis’s account. However, Stone is focused on the actualization of the developmental path which will likely lead to the actualization of consciousness which is a great good for the fetus. For Stone, “If the biological nature of an infant is to make herself self aware, then it is in her interest to grow up.” ⁹  Since the nature of the infant and the nature of the fetus (with regards to development) are the same, then the fetus has an interest in growing up just like the infant. And a fetus which would follow its genetic path to its good end is harmed by death. ¹⁰  Moreover, we owe it to the fetus “to look out for their interests.” ¹¹In Stone’s account it is depriving a fetus of its interests that is wrong.

Feldman’s argument is relevantly similar to Marquis’s and Stone’s, though Feldman concludes that not all abortions are immoral. The morally relevant category for Feldman is desert. When an abortion is immoral (generally late term abortions on his account) it is because we are depriving the fetus of what it deserves, which is its life. The cause for this desert is the fetus’s investment in its life that consists of growth and development. So a fetus which has put little to no investment in its life (i.e., an early term fetus) deserves relatively little, and if an eight month fetus is aborted then “her efforts are deprived of their point, and she suffers a serious injustice.” ¹²  (For Feldman, the mother has a certain level of desert that can outweigh the desert of the fetus for a time, which is why a later abortion is immoral but an earlier one is not.) ¹³

These three positions can be roughly summarized by the outline of the deprivation argument provided above. One must simply understand that the thing of value for each argument is a “future like ours” for Marquis, interests in growing up for Stone, and desert for Feldman. Moreover, it should be recognized that the moral wrong that occurs with abortion in the above accounts is equivalent with the type of moral wrong that occurs when an adult human is killed.

1. The Ontology of Fetuses ¹⁴

One of the most fundamental challenges facing the moral status of abortion is positing what the fetus essentially is in a moral sense. It seems as though a sufficient answer to this question would lay many of the issues about the morality of abortion to rest. H. Tristram Engelhardt Jr. addresses this issue directly in his essay “The Ontology of Abortion.” In setting out the issue he says this about the ontology of the fetus:

Thus, by ontological status I shall mean certain general categories of being, such as being an inanimate object, being a mere animal, being a fully developed self-conscious human person. With regards to the question of abortion, this is the issue of whether the fetus shows itself to be something to which one owes obligations in the sense one owes obligations to persons ¹⁵

Marquis certainly agrees with Engelhardt as well as others ¹⁶ that the issue turns on what kind of a being the fetus is. At the outset of Marquis’s piece he says, “…whether or not abortion is morally permissible stands or falls on whether or not a fetus is the sort of being whose life it is seriously wrong to end. ¹⁷  Marquis, as we have seen, goes on to assert that since a fetus has a future of value and depriving someone of a future of value is the central “wrong-making” quality of killing, abortion is wrong. Stone certainly agrees that the abortion issue is dependant on the ontological status of the fetus. His account states that:

The fact that an infant has the strong potentiality of becoming an adult human being is the fact that if she follows to the end the developmental path primarily determined by her nature which leads to the adult stage of members of her kind, the infant will produce an adult human animal that was once the infant. This fact, conjoined with the fact that adult human animals are self aware, entails that the infant has a nature, the actualization of which involves a great conscious good for the infant. This last fact, I have argued, grounds an interest in growing up. ¹⁸

In other words, abortion is immoral because the fetus is the sort of being that has a grounded interest in growing up just like the infant. And of course Feldman’s account asserts that the late-term fetus is the sort of being that deserves not to be aborted. ¹⁹

II.i. Deprivation in Terms of Ontology

Given these accounts, we can generalize premises for the deprivation argument put in terms of ontological status:

P1 – A fetus is the sort of being that has a future and it is valuable.
P2 – An abortion deprives that fetus of its future.
P3 – A fetus is the sort of being that it is immoral to deprive of something

valuable.

C – Abortion is immoral.

This way of putting forth the argument seems to better capture the view of the ontological status of the fetus. However, I do not think this account is tenable.

I deny the truth of the above argument due to P3. That is to say that I do not think that the deprivation argument itself has given any good reasons to think that fetuses are the sorts of beings which it is immoral to deprive of valuable things; it has only given us reason to think that a fetus has something valuable that can be taken from it.

The grounds on which I base this claim are that of property rights. One of the essential characteristics of any situation where there has been a wrongful deprivation is that whoever it was that was wrongfully deprived of something must have had a right to have it. It is the violating of this right that makes the deprivation a moral infraction. Put another way, someone who has been robbed has been the victim of a moral violation only in virtue of the fact that it was her belongings which were taken and she is the sort of being from whom it is wrong to take belongings. So any citation of a moral wrong that is based on the deprivation must invoke some notion of property rights.

I should note that while there may sometimes be grounds to differentiate rights and moral obligations ²⁰  I simply mean that the right not to have valuable things taken from an agent and the moral obligation of others not to take valuable things from an agent are the same. This seems to be in line with the literature supporting the deprivation argument. Moreover, if the deprivation argument is to work then both of the above (the right and the moral obligation) would have to be accepted. In my critique of the deprivation argument I am not trying to separate the two issues and deny one of them, I am simply denying both.

III. To What Do We Have Moral Obligations, and Why?

What is at stake here is, as Raanan Gillon puts it, why it is wrong to shoot peasants while it is ok to shoot pheasants. ²¹ In this quip, Gillon lays out the problem, that is, to what do we have moral obligations, and why? It is generally agreed that we are obliged not to kill other humans most of the time. This obligation, as Gillon sees it, stems from the nature of other humans; that is to say their human nature. ²²  However, just to say that human nature accounts for this obligation does not do much work because almost all philosophically interesting cases are ones that we need to know what counts as ‘human nature’ or what part of human nature does the work in question. Gillon goes on to give four different possible justifications for the obligation not to kill a being. While there is a useful exploration here, I am not concerned with the usual suspects ²³ directly, as they are not argued for by the proponents of the deprivation argument. I am concerned with the deprivation argument, which tries to ground moral agency in having a future of value.

The property of simply having a future of value is not sufficient to establish that a being can be wronged. Clearly, pheasants have a future of value, and even microbes have futures that are of some value. Moreover, most of us are rather sure that the pheasant, or at the very least the microbe, is not the sort of being from which it is wrong to take a future of value. Or at the very least, if there is a moral wrong that occurs when the microbe is robbed of its life, it is not the same sort of wrong that occurs when an adult human is robbed of her life.

So, why are we to suspect that a fetus can be wronged while a microbe cannot? Perhaps it is the type or degree of value that grounds this differentiation. Marquis’s piece gives a good account of how we might parse these values; the value most other humans experience from living out a long life might confer moral agency. So it is having value that is derived from having “a future like ours” ²⁴ that differentiates the fetus (and the peasant) from the microbe. However, this account does not work as it stands.

Every cell in our body (except gametes) has a full set of chromosomes that could, under the right conditions, lead to a full human that would have a future like ours. ²⁵  So it must be more than the sheer possibility of a future like ours which grounds moral agency. It seems we also need to incorporate some of Stone’s account which stipulates that the differentiation is there because the fetus is very likely to become a person, provided it is not aborted. ²⁶So, there is a substantive difference in the probability of a certain type of value that a fetus has versus the probability of that type of value which a human skin cell has, and the type of value a microbe has. This is because a fetus has a high chance of having a future like ours, while a skin cell has little chance of this and a microbe definitely has no such future in store.

However, as special as this value may be, there is still no reason to think that possession of it confers moral agency. While the fetus and persons both possess this unique value the wrongness of killing the person does not derive from the possession of this value alone, it derives from the value itself and the type of being the person is, a moral being. And the reason it is wrong to take things from moral beings is because they are moral beings, not because of what they have which can be taken. The only thing the deprivation argument has established is that the fetus has something that is valuable which can be taken away, not that fetuses are the types of beings that can be morally wronged.

The presumption on the part of the proponent of the deprivation argument is that the property ‘having a likely future like ours’ is what confers the capacity to be wronged. However, this is an unsupported premise. I think that if the obligation for other humans not to kill me is based on a deprivation of my future of value this is only so in virtue of the fact that I am the type of being from whom it is wrong to take valuable things away. We are without cause to think that the fetus is this type of being as well.

The deprivation argument has given us no cause to suspect that a fetus is the type of being from which it is wrong to take valuable things; however, it has not given any reason to doubt that a fetus is that type of being either. Therefore, the question arises whether there are grounds for the proponent of the deprivation argument to claim that a fetus could have property rights. I assert that there is no area for proponents of the deprivation argument to ground their claim based on their premises alone; their argument is incomplete. They must establish that fetuses have rights to things they possess. That is, they must establish whether fetuses are like us in that it is wrong of someone to take something from us under normal circumstances, or if they are more like a microbe, which is not morally wronged when something is taken from it. In other words, do fetuses have property rights?

1. Fetuses and Property Rights

Many of the central themes of all property rights discussions focus on people or groups of people (like governments or corporations). However, the question we must ask in order to sort out the tenability of the deprivation argument is what sort of beings are eligible for property rights, and moreover, what actually confers those rights on them? If a fetus is the sort of being that qualifies for property rights then it seems as though the deprivation argument has ground on which to stand, if not, then it seems it is a groundless claim.

One possible, and rather intuitive, answer to the above question is to say that being a person is sufficient to confer property rights. Yet one would have to presume that a fetus was a person for the deprivation argument to be effective, which is immediately problematic. The proponent of the deprivation argument is trying to make a claim about the ontological status of the fetus without simply stating that the fetus is a person. ²⁷  Another intuitive response may be that being Homo sapiens is what confers property rights. And since fetuses are Homo sapiens, they are the sorts of beings that have property rights. However, the rather obvious problem with this response is that this would disallow property rights for aliens, human genetic mutants, and artificial intelligences. Perhaps Homo sapiens is a sufficient condition for having property rights, but not a necessary condition. This would allow for property rights to be conferred upon non-Homo sapiens, which is something a good account of property rights should allow for. However, we would also have to include brain dead Homo sapiens, which seems contentious in light of our acceptance of organ donation in the case of brain dead patients. Of course we could amend the requirements to be non-brain dead Homo Sapiens; however, this caveat does not help the deprivation argument prove that all abortions are immoral. For there is a time frame in which fetuses do not have brains, and thus those fetuses would not have the right to their lives. In addition, anencephalic fetuses would not be able to suffer moral violation. But taking the argument in this direction is missing the point, as the above claims are out of the scope of the deprivation argument against abortion. To take the argument in this direction is to begin to make claims about the bounds of moral agency; claims which are far beyond the bounds of the simple premises put forth in the deprivation argument.

Even if a proponent of the deprivation argument attempted to travel down this path and claim that fetuses do have property rights, it seems they have a lot of work to do to establish this manner of right for fetuses. A brief look at different accounts of property rights will illustrate the hurdles a proponent of the deprivation argument would face.

Classically, property rights are conferred only on moral agents. Hegelian property rights derive from one’s moral development in the community ²⁸  while Lockean property rights are acquired through the interaction of the person in the community. ²⁹  However, both of these accounts assume the moral agency of the right bearer. In fact, any type of rights-based property theory would have to assume the moral agency of the right bearer; for if a thing bears rights it is a moral agent. On the other end of the spectrum is utilitarian property rights; however, these assume the moral agency of the individual. That is to say, the utility of the agent is not counted in utilitarian calculus unless the agent is a moral agent. Moral agency is established prior to the discussion of the agent being eligible for property rights. So, to prove that fetuses are eligible for property rights would entail proving the moral agency of the fetus.

I suggest this difficulty in trying to ascertain how fetuses might come to have property rights is due to the nature of the question being asked. We are asking what manners of beings are entitled to property rights. However, the entire question of which beings have rights is contingent on which beings have moral agency and why they have it. So, to simply say that a fetus has something of value, and that we take it away when it is aborted, says nothing about its ontological status as a moral agent. More directly, the deprivation argument has never given us grounds to think that fetuses are moral agents.

IV.i. Marquis, Stone, and Feldman Revisited

If we revisit the three versions of the deprivation argument presented earlier, we will now be able to see plainly the question begging nature of the accounts. Marquis was concerned with a fetus being deprived of a future like ours; however, the simple fact of having a future like ours does not confer moral agency on an individual. This seems to entail that at some point in the future the fetus will have moral agency, but it does not show the existence of it now. Stone’s argument suggests that growing up is in the interests of the fetus. Again, we are faced with the lack of moral agency; just because something has interests does not mean that we are obliged to protect those interests. Microbes have interests, yet we are without fault when we deprive the microbe of those interests. And finally, Feldman’s account says that the fetus’s investment in life ought not to be taken from it. However, there are many living things which invest time and energy in their lives and for which we are not at fault for taking that investment. To reiterate, the possession of these valuable things does not entail moral agency. And the deprivation argument only works if fetuses are the types of beings that can be wronged.

1. Conclusion

We have seen that the deprivation argument has given no reason to think that fetuses are the sort of beings that have property rights. Moreover, we have seen that an argument against abortion based on a fetus’s rights must presuppose that fetuses are moral agents. This is because the deprivation argument must invoke property rights, and to be a candidate for property rights generally, one must be a moral agent. The proponents of the deprivation argument seem to assume that fetuses are relevantly similar to people in more than just the sense that they have futures that will likely be valuable; they also assume that they are moral agents. Since the moral agency of fetuses is essentially what the argument is trying to prove the deprivation argument does not achieve its goal; it is question begging. Thus, if abortion is morally equivalent to killing an adult human, it is surely not so based solely on the deprivation argument.

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1. I want to make clear that by “fetus” I mean the organism from the formation of a single cell zygote to birth. I, like Warren Quinn in “Abortion: Identity and Loss,” Philosophy and Public Affairs 13.1 (1984): 24, footnote 2, recognize that it is a common (and perhaps bad) habit within philosophical discourse about abortion to refer to the organism by such a general term. However, I will not be basing any moral distinctions on the differentiation between a zygote and a fetus.
2. Marquis, “Why Abortion is Immoral.”
3. Stone, “Why Potentiality Still Matters.”
4. Feldman, Chapter 12.
5. Marquis, “Why Abortion is Immoral,” 51.
6. Marquis, “Why Abortion is Immoral,” 50.
7. Marquis, “Why Abortion is Immoral,” 55.
8. Sinnot-Armstrong, “You Can’t Lose What You Ain’t Never Had: A Reply to Marquis on Abortion.”
9. Stone, “Why Potentiality Still Matters,” 2.
10. Stone, “Why Potentiality Still Matters,” 2.
11. Stone, “Why Potentiality Still Matters,” 17, footnote 6.
12. Feldman 203.
13. Feldman 204.
14. In this section it may seem as though I am trying to imply that the moral category “rights-bearer” is some essential or real category of being. I am not claiming this.
15. H. Tristram Engelhardt Jr., “The Ontology of Abortion,” Ethics 84.3 (1974): 218.
16. In addition to Engelhardt, Marquis asserts the following authors share this claim: Joel Feinberg in “Abortion,” in Matters of Life and Death: New Introductory Essays in Moral Philosophy (1986), Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs II.1 (1972), Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist VII.1 (1973), L. W. Sumner, Abortion and Moral Theory (1981), John T. Noonan, Jr., “An Almost Absolute Value in History,” in The Moarality of Abortion: Legal and Historical Perspectives (1970), and Philip Devine, The Ethics of Homicide (1978).
17. Marquis, “Why Abortion is Immoral,” 46.
18. Stone, “Why Potentiality Matters,” Canadian Journal of Philosophy 17 (1987), cited in Stone, “Why Potentiality Still Matters,” 2.
19. Feldman 203.
20. Jeremy Waldron, The Right to Private Property, (New York: Oxford UP, 1988) 70.
21. Raanan Gillon, “To What Do We Have Moral Obligations and Why?” In Contemporary Issues in Bioethics, edited by Tom L. Beauchamp & LeRoy Walters, 3rd ed. (Belmont, California: Wadsworth Publishing Company, 1989) 161.
22. Gillon 161-162.
23. I.e., personhood, sentience, Homo sapiens, and viability.
24. Marquis, “Why Abortion is Immoral,” 51.
25. C. Cameron and R. Williamson, “In the World of Dolly, When Does a Human Embryo Acquire Respect?” Journal of Medical Ethics 31 (2005): 215.
26. Stone, “Why Potentiality Still Matters,” 2.
27. The deprivation argument for Marquis, Stone, and Feldman is proposed as an alternative for personhood arguments against abortion. See Marquis, “Why Abortion is Immoral,” 46-49; Stone, “Why Potentiality Still Matters,” 2; and Feldman, 201.
28. Georg W. F. Hegel, The Philosophy ofRight (Digireads.com, 2004), § 36.
29. Locke, Two Treatises of Government, Chapter 11, Section 137.