On Personhood, A Follow-Up to J’s Post


Hello again, dear readers. My apologies for the continuance of this topic, but it appears J’s post (and my addendum) have became rather famous in the anti-abortion rights realm, and I’ve received a few requests to elaborate, so I thought I would do so here. WARNING: This is, yet again, a loooong post. But it’s a worthwhile read if you’re interested in legal theories on fetal personhood (or at least I think it is 😉 ). 

This post will examine the current personhood status of born individuals, and zygotes, blastocysts (pre-embryos), embryos, and fetuses (ZEF, for short), both in the US law and under international human rights law and norms. It will then discuss what we would need to find in order to change that law. It will then conclude with a more thorough examination of why granting personhood status to zygotes, blastocysts (pre-embryos), embryos, and/or fetuses is impossible without eroding the rights of women.*,**,***

* This post is dedicated to the friendly, if somewhat misguided blogger – DolceBella (DB) – but even more so to the ever-so-slightly-less-sane-than-the-rest-of-us commenter known as “Mike” on 1Flesh’s blogs. DB – I hope this answers your questions, but if not, feel free to ask away in the comments and we’ll keep the dialogue going. Mike, I have a feeling most of this might be above your pay grade, intellectually speaking, but give it a go anyway, will ya?

** Many of the concepts in this post come from Jessica Berg’s article, “Of Elephants and Embryos: A Proposed Framework for Legal Personhood.” I would highly recommend reading it for a more thorough background on the subject of legal personhood.

*** Mad props to the Center for Reproductive Rights for pulling together their piece on the dangers of granting personhood to ZEF, with info from around the world. Y’all should read that, here, too.

First, let’s talk a little bit about the beginnings of human life, which is where a lot of personhood arguments begin.  Most of the efforts at granting personhood before birth (including DB’s) attempt to capitalize on the fact that there currently is NO consensus on when life begins. Different religions claim that human life begins from the moment of fertilization, to 40 days after fertilization (for men), to 80 days after fertilization (for women), to the 120thday of gestation, to the point at which the head emerges from the womb.

Similarly, the scientific and medical communities have yet to come to a consensus, but they HAVE agreed to certain terms surrounding pregnancy, and I believe it would be helpful if we all agreed to use these terms when talking about a pregnancy, particularly when we’re talking about pregnancy in relation to medical procedures and the law:

  1. Fertilization happens when a sperm penetrates and egg to create a zygote.
  2. After fertilization, a zygotetravels through the fallopian tubes, dividing to become several cells and becoming a blastocyst or pre-embryo.
  3. The blastocyst or pre-embryo reaches the uterus ~ 5 days after fertilization. A pregnancy officially begins when the blastocyst / pre-embryo implants into the lining of the uterus. It is important to note here that “conception” is not a scientific term; it is used INFORMALLY to refer to either fertilization OR implantation, and is thus imprecise – we should be using precise terms.
  4. ~ 3 weeks after fertilization has occurred, the implanted blastocyst has developed enough to be considered an embryo.
  5. Between the end of the 8th week and end of the 10thweek of pregnancy (10 – 12 weeks post fertilization), the embryo develops into a fetus.

Note – NOWHERE IN THERE did I use the term “baby” or “child.” That because those terms or neither medically nor scientifically accurate when discussing a pregnancy or a ZEF in the womb.

So, now that we’ve got the medical terminology down, I think we can continue.

Let’s talk first about the right to life in terms of international human rights. International and regional human rights treaties protect the right to life without defining exactly when life begins. However, analysis of the negotiations behind these treaties indicates that the drafters (which including religious groups such as the Holy See) did NOT intend for human rights, such as the right to life, to attach before birth.

As stated in my original blog post:

Article 1 of the Universal Declaration of Human Rights is a fundamental statement of inalienability: “All human beings are born free and equal in dignity and rights.” Particularly important here is that the word “born” was used INTENTIONALLY to exclude the fetus or any antenatal application of human rights. During the drafting of the UDHR, an amendment was proposed and rejected that would have deleted the word “born.” Arguments for the amendment were, in part, based on a desire to protect the right to life from the moment of conception.  During negotiations, the representative from France explained that the statement, “All human beings are born free and equal…” meant that the right to freedom and equality was “inherent from the moment of birth.” Article one was adopted with its current language with 45 votes and 9 abstentions. Therefore, a ZEF has no rights under the Universal Declaration of Human Rights.

The International Covenant on Civil and Political Rights also rejects the idea that the rights to life, enshrined in Article 6(1), applies prior to birth. The history of the negotiations indicates that, again, an amendment was proposed and rejected that stated: “the right to life is inherent in the human person from the moment of conception, this right shall be protected by law.” The Commission voted to adopt Article 6 with no reference to conception by a vote of 55 to 0, with 17 abstentions.

Further, both the negotiations and the interpretation by the expert treaty body of the Convention on the Rights of the Child make clear that that the treaty does not recognize the right to life until birth. Though anti-abortion rights activists have often relied on Paragraph 9 of the preamble – “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” – to claim fetal rights, this is an erroneous argument. As originally drafted, the Preamble did not contact reference to protection “before as well as after birth.” The Holy See led the proposal to add this phrase, while stating that “the purpose of the amendment was not to preclude the possibility of an abortion.”  Though the words were included, their limited purpose was reinforced by the statement that, “the Working Group does not intend to prejudice the interpretation of Article 1 or any other provision of the Convention by States Parties,” which is a reference to the definition of “a child.” Article 1 states, “For the purposes of the present Convention, a child means every human being below the age of 18 years…,” which, consistent with the UDHR, refers only to born persons.

And, finally, jurisprudence of the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) make clear that the principles of non-discrimination and equality require that the rights of a pregnant woman take priority over an interest in fetal life.

In terms of regional human rights standards, I’ll stick with just the American Declaration on the Rights and Duties of Man (ADRDM) instead of covering European and African law as well, as I’m in the US, and DB is in Canada. Article 1 of the ADRDM states that, “[e]very human being has the right to life, liberty, and the security of his person.” The drafters of the declaration specifically rejected an addition to this article that would of extended the right to life from the moment of conception.

Photo courtesy of S.E.B.

Photo courtesy of S.E.B.

Moving on to US Law, we discover that the constitutional right to life accrues at birth. For instance, SCOTUS has determined that “the word “person,” as used in the Fourteenth Amendment, does not include the unborn” (Roe v. Wade, 410 US 115, 157).

All of this, I hope, has convinced DB that ZEF are NOT currently persons under the US Constitution, nor under international law, and are therefore not entitled to the protection of persons under either the US constitution or international human rights law.

The question now becomes, SHOULD ZEF be entitled to personhood status the law?

I think perhaps I should stop here for a moment to delve a little more deeply into the concept of “person” in American jurisprudence.

Under US law, they are two types of “persons.” The first, natural persons, is the term used to refer to human beings’ legal status. Certain legal rights accrue immediately upon birth, and the term “natural person” can be taken to mean an entity who is entitled to maximum protection under the law.  Standing in contrast to natural persons are juridical persons. “Judicial person” is a term used to refer to an entity that is not necessarily a human being, but for which society chooses to afford some of the same legal protections and rights afforded to natural persons.

Both of these terms refer to legal distinctions, and not moral ones. But since we’re talking about changing laws (i.e. granting legal personhood to a new category of entities), we should use legal language. Whether or not an entity meets the requirements of moral personhood is a debate for a different time and place (one not attached to the making of secular laws).  NB: Moral personhood status, or the lack thereof, does NOT (and should not, and cannot) determine legal personhood status.

Further, it’s important to note that these terms also designate important distinctions. The first is that natural persons are ALWAYS genetically human. Juridical persons MAY be genetically human, but it is not a requirement (see, e.g. corporate personhood). Second, and this is important, natural persons are ALWAYS entitled to priority over juridical persons. This does not mean that juridical persons could never attain equal status with natural persons, merely that the allocation of such rights to juridical persons would have to be justified by the interests involved.

Justification for limiting the rights of current natural persons could come from the interests of the entity seeking personhood status. It could also come from the interest of current natural persons in protecting their rights; however, granting personhood status to a new entity based on the interest of others must be necessary in order to protect the interests of current natural persons.

An entity’s interests, in the sense mentioned above, means that an entity has the capacity to have a stake in things, which is contingent upon the entity being consciously aware. If an entity does not have interests as here defined, then they can’t be granted personhood based on their interests, only on the interests of those who are already natural persons. Further, natural personhood status granted on the basis of interests of others may be more limited in scope than personhood granted on the basis of oneself, and is incredibly rare.

The take away from this section: Natural personhood (and the attendant rights) exist from the moment of birth where the entity is genetically human. Granting natural personhood to other entities can happen either because the entity has interests of its own that justify it being termed a natural person (read: that justify limiting the rights of currently recognized natural persons), or  (very rarely) where the interests of current natural persons justify the designation.

But what about judicial personhood? Like natural personhood, judicial personhood can only be granted when the interests of the entity in question justify the restriction of rights of to already recognized natural persons, or when the granting of juridical personhood is necessary to protect the interests of already recognized natural persons (also keep in mind that if the latter, the rights granted must actually be necessary to protect those interests).

Now that we’ve talked about the concepts of personhood, the requirements for granting legal personhood status to an entity, and the fact that natural personhood applies immediately upon birth, let’s move on to applying these requirements for legal personhood to human entities prior to birth.

Let’s start with zygotes, blastocysts, and pre-embryos, largely because, if personhood were to be granted to entities at these early stages of development, it would obviously extend to later stages. If zygotes, blastocyst, or embryos (ZBE) are not entitled to natural personhood, then we can consider whether or not they are entitled to juridical personhood. Then we can move on to determine whether fetuses are entitled to natural personhood, juridical personhood, or neither.

Top left: zygote; top right: 5 day blastocyst; bottom: 8 week embryo (LMP)

For ZBE, as with all entities for whom there is a question of the granting of natural personhood, we first look to whether the entity has interest of its own that would entitle it to that designation.

First, ZBE do not meet any of the criteria that natural persons exhibit for having an interest, such as sentience, consciousness, pain and pleasure perception, the capacity to relate to others, or the ability to communicate. As many have argued, however, ZBE have the POTENTIAL to develop these things. But the potentiality to develop these things should not be the basis for granting natural personhood. As Berg so keenly points out, if the potential to become a full person is the basis for legal personhood, then every genetically human cell would have a claim for personhood status based on current cloning technologies.

ZBE do not have interests of their own as they share only one characteristic with currently recognized natural persons – e.g. infants, children, or adult human beings – the fact that they are genetically human; they do not share the most important characteristic: sentience. And while they have the POTENTIAL to become an entity that shares all characteristics with a currently recognized natural person, that potentiality is not enough to grant natural personhood status. Because embryos do not have interests of their own, and the potential to develop these interests is insufficient for the granting of natural personhood, the granting of natural personhood status to ZBE must be based on the interests of currently recognized persons. There is, however, no evidence that suggests that the interests of currently recognized natural persons will suffer if ZBE are not recognized as natural persons; to the contrary, granting natural personhood to ZBE could limit the rights of currently recognized natural persons. This makes the granting of natural personhood to ZBE legally unacceptable.

Some states (e.g. Louisiana), however, have granted juridical personhood to ZBE on the theory that there is a need for a legal actor in certain, specific situations. Even in these cases, however, the rights granted under juridical personhood cannot constitutionally infringe upon the rights of natural persons (again, the rights of natural persons always take priority over the rights of juridical persons).

Take Away from this section? Zygotes, blastocysts, and embryos should not be granted natural personhood status because they do not have the capacity to have interests of their own, and there is no damage done to natural persons if they are not granted personhood status (to the contrary, damage might be done to currently natural persons if they WERE granted personhood status). Some states have granted juridical personhood status to ZBE based on the necessity of a legal actor, but states must be careful that the rights granted to such juridical persons do not infringe upon the rights of currently recognized natural persons.

Shall we move on to fetuses?

The relevant questions when determining whether or not fetuses should be granted personhood is both whether they should be granted personhood, what type of personhood should they be granted, and at what stage of development such a designation should apply. Sentience, physical development (i.e. the similarity to currently recognized natural persons), and birth are three distinct stages in fetal development to be considered.

Photo courtesy drsuparna.

Photo courtesy drsuparna.

10 week fetus

Prior to sentience (though there is some debate as to exactly when this occurs, it is no earlier than the late second trimester, and more likely sometime in the third trimester) a fetus, like the ZBE mentioned above, does not have interests of its own and therefore does not have the requisite interests for natural personhood. Further, there is little to no evidence that the rights of currently recognized natural persons have suffered because non-sentient fetuses have not been granted natural personhood status. Again, to the contrary, there is evidence that granting natural personhood status to fetuses would harm currently recognized natural persons.  Arguments that granting juridical personhood status to fetuses prior to sentience harms the rights of natural persons in general ignores the harms that would befall individual natural persons that would result from the granting of juridical personhood to fetuses.

But what about fetuses after sentience, one of the hallmarks of a natural person? Granting natural personhood status to such fetuses when they reach the point of sentience would result in necessarily result in limitations to the rights of currently recognized persons – namely a pregnant woman who’s decisions during pregnancy might be constrained. Fetal interests at the point of sentience (particularly if the other hallmarks of self-interest, i.e. consciousness, pain and pleasure perception, the capacity to relate to others, or the ability to communicate are not present) are simply not strong enough to justify such a restriction on the rights of currently recognized natural persons.  In order to recognize such fetuses as natural persons, it would be necessary to show how recognizing fetuses as natural persons would be necessary to fully protect the rights of currently recognized natural persons, and it is difficult to imagine a such a scenario.

If fetuses at a stage past sentience can’t be granted natural personhood status, could they be granted juridical personhood status? As with ZBE, the granting of juridical personhood to fetuses could occur based on fetal interest, or, more rarely, could occur on the basis of the interests of others SO LONG AS the rights that were granted to fetuses were necessary to protect the interests of others. Further, states would, once again, need to be sure that through the granting of juridical personhood status they were not infringing upon the rights of already natural persons, but were rather protecting the interests of currently recognized natural persons, and that the rights granted under juridical personhood were no broader than necessary to protect those interests.

Some have argued that the closer a fetus’ development comes to that of a born human (i.e. a natural person), the greater its interests are through increased cognitive and physical development (i.e. through making them similar to already recognized natural persons), making it worthwhile to grant them protections similar to those of infants or children. Specifically, it has been argued that fetuses at much later stages of development – for example, once a fetus’ internal and external organ structures have developed to a degree that make the fetus more similar to that of a born infant and natural person – are so similar to natural persons that the granting of natural personhood status is appropriate, with all its attendant rights and protections.

However, when analyzing this proposition, it is important to remember that interests of an entity alone cannot alone be the basis of the granting of personhood. A grant of natural personhood to a new entity must justify the necessary reduction in rights of currently recognized natural persons. In this instance, the right of a woman – a currently recognized natural person – to bodily integrity (also known as the right to self-determination), as protected by decisions made by SCOTUS and as protected under the UDHR and the ICCPR (which the United States has ratified), must take precedence over fetal interests.

NB: As I’ve said before, that terminations of pregnancy at such late term, are not performed except in EXTREMELY rare circumstances – circumstances in which a woman’s life or health is endangered, or in which a severe fetal anomaly, usually a condition incompatible with life, has been discovered. A woman does not wake up during their 8th or 9th month of pregnancy, after carefully caring for a developing ZEF, and suddenly decide to have an abortion for “funsies.”  She does so because extreme circumstances require the termination of her pregnancy.

Since others have asked me precisely what the dangers would be in granting legal personhood, specifically natural personhood, rights to a fetus, I wanted to take a moment to discuss why the granting of personhood status to ZEF would be detrimental to currently recognized natural persons, and thus should not occur.

Once again, this analysis is necessary because rights entail corresponding obligations on the part of other rights-holder in regards to respect for those rights, meaning that recognizing other entities as persons would NECESSARILY limit the rights of currently recognized natural persons.

At this point I can see the comments start to come pouring in about slavery. Unfortunately, the comparison of the granting of natural personhood to former slaves to the granting of natural personhood to fetuses is a flawed comparison. Slaves were not only born entities, with interests of their own, slaves shared all relevant characteristics with then-recognized natural persons. The failure to recognize former slaves on the ground of such a nominal characteristic of skin color would harm then-recognized natural persons by undermining the protections for which the Constitution stands. By contrast, a ZEF throughout much of a pregnancy does not have interests of its own, and does not share sufficient characteristics with current natural persons to make the denial of natural personhood detrimental to current natural persons, neither individually nor collectively.

Moving on, we can start to look at the implications of granting personhood status to ZEF in more depth:

Photo courtesy of euthman.

Photo courtesy of euthman.

First, fetal personhood could carry implications for the protection of freedom of religion and conscience. For instance, individuals whose moral, ethical, or religious beliefs lead them to believe that life begins at birth could be restricted in acting in a manner consistent with their religious views.

Second, granting fetal personhood could mean that ZEF are included as victims throughout the penal code, opening the door to criminal investigation and prosecution of women who suffer miscarriages or stillbirths. While Louisiana has recognized ZEF has persons for the purposes of prosecution in, for example, murder trials, they have not recognizes ZEF as NATURAL persons, only as juridical persons.


Could this become criminalized? If fetuses are granted personhood rights, you betcha.

Third, the granting of natural personhood to ZEF could have chilling effects on women’s behavior and bodily autonomy, i.e. their protected rights to privacy and to self-determination. I know DB felt that J’s comparisons were hyperbole, but they’re actually not. If a fetus has all of the rights of a natural person, pregnant women could be sanctioned for abuse or child endangerment for engaging in activities that might endanger the ZEF (as women with born children are now). For example, not wearing a seatbelt, or drinking alcohol at any state of gestational development could lead to criminal prosecution.

Fourth, there could be significant consequences for women seeking fertility treatments using reproductive technologies. For example, women undergoing IVF might be required to implant all fertilized eggs to avoid the destruction or freezing of embryos, a practice which could result in higher rates of multiple pregnancies, jeopardizing both the health of women, and fetal development.

I could go on, to talk about property rights, registrations, and other things, but I hope, DB, you’re seeing my point about why granting personhood status, with its incumbent rights, could infringe upon the rights of women.

Further, these aren’t all hypothetical “the sky is falling” complaints. When we look at countries were nations have violated international human rights law by granting personhood rights to ZEFs, or where they place the rights of ZEFs over the rights of women, we see violations of women’s right to life and health; to be free from cruel, inhuman, or degrading treatment; to their liberty and security; to their right to privacy; and to determine the number and spacing of their children. To see case studies about this, visit here.

Final take away: Granting natural personhood to ZEF is a legal impossibility, both constitutionally and under international human rights law. Why? Because by granting personhood to a ZEF you NECESSARILY impinge upon the rights of a woman, a currently recognized natural person. There’s no fallacy there. None at all. This actually IS a zero sum game. And in such a “game,” the rights of women, currently recognized natural persons must ALWAYS take precedence when determining whether or not to grant natural personhood status to ZEF, a currently non-recognized entity.

Till next time,

– H

© Heather Parker and Antigone Awakens, 2012-2013.


16 thoughts on “On Personhood, A Follow-Up to J’s Post

  1. Anonymous

    The infringement on women's rights in favor of fetal “rights,” which the anti-choicers call hyperbole, is already happening. The case of Christine Taylor is a good example:
    States like GA or UT which have dabbled with fetal protection rights have in essence criminalized miscarriage or at least made miscarriage something to investigate to see if there was “human involvement.”

  2. David Gallant

    You begin with a biology course which means nothing considering your overall belief that the baby may be aborted at any point before birth. Since that is the case, exactly what you call the baby or what stage of development it is in is irrelevant and presented as a distraction. You make it sound as if should one get the terms wrong, their argument is thereby nullified. But in reality, we can call the baby anything you want; you still think it is fine to kill it prior to birth.

    Then you get into some quibble over international law. Perhaps there is some purpose here for legal junkies but is again pointless to the debate. Pointless for two reasons: first no nation is obliged to honor the laws of another except through a treaty; second, the presumption is the man’s laws are correct laws.

    To elaborate, we are discussion US morality and its place in law. Sure the US is part of the UN but we have not ratified the UN Universal Declaration of Human Rights as a treaty. Bringing it up is a straw man argument. The same goes for the Covenant you mention. These are not ratified treaties so even if you believe or endorse the sentiments contained within, there is no obligation to honor these agreements.

    To further elaborate, many things which have been recognized as legal have also been found to be fundamentally evil. Slavery comes to mind. Various voting laws do also. So to present a law as evidence that something is good and right is missing a step. You must first prove the law is good and right.

    You have not done that. You have simply shown that these “agreements” not laws have been agreed to by various interests not relevant to the discussion.

    You then bring in a religious group to further distract the conversation. We know that is a distraction because for this to have relevance you would have to first prove that religion is the correct one. There are many religions and they cannot all be right. Not even necessarily atheism. If this was so simple, I could just as easily reference some random religion which agrees with my position.
    One nullifies the other.

    You then bring CEDAW and ADRDM into the mix which are more locally recognized versions of the things you have already mentioned. They are perhaps more relevant but again are simply man made agreements subject to the same flawed reasoning as any other agreement man may enter. There is nothing sacrosanct to them; no reason to think that because these exist they are thereby correct.
    And then Roe v. Wade. Again, unless you are prepared to argue the divinity of those Supreme Court Justices that is another straw man argument. Slavery was also upheld by that Court.

    Then more legal mumbo jumbo which remains irrelevant. We are not arguing what the law is. We know what the law is. We are discussing the correctness of the law. We are discussion what should be; not what is.

    Then finally we get to your actual belief with this statement:

    “An entity’s interests, in the sense mentioned above, means that an entity has the capacity to have a stake in things, which is contingent upon the entity being consciously aware.”

    That is it. That is the fundamental point you wish to make. That which is unaware of its existence does not necessarily deserve that existence. Rights do not need to be guaranteed to that which is not even aware of its life. That is a common theme among those attempting to manipulate populations. Stalin, Mao, even the founder of Planned Parenthood, Margaret Sanger was giddy for eugenics.

    I’ll let you counter this much before I continue. I am certain you think I failed someplace here so rather than continue it would be better to just stop and let you catch up.

    1. Brooke Doris

      David and Dan,

      Not surprisingly, at no point in any of your comments did you note the personhood nor the autonomy of the pregnant woman.

      The amazing, invisible woman. All too typical coming from a man’splainers without a uterus.

  3. Heather

    I’m sorry, are you one of those people who believes that the sharing of knowledge is bad? If so, we should probably just end this conversation here, because I have no respect for that philosophy whatsoever. If not, I’m not sure why you think it’s a bad idea that I review the basic biology concerning pregnancy, specifically considering so many anti-choice people seem to be lacking basic info in that regard, e.g. before birth, a human is NOT a baby; it is a zygote, blastocyst, embryo, or fetus. Please learn the meaning of these terms and use them correctly.

    In re: international treaties, once signed and ratified by nations, they DO bind the nations that sign and ratify them. Like that silly little thing called the ICCPR that the US has signed and ratified? We’re bound by it. The only law higher than it in the nation is the Constitution. If you don’t understand legal shite, keep your mouth shut about it. As for them being man’s laws, well, yep, those are the only laws that matter, particularly in a secular nation. But it’s cute that you think religious laws should apply.

    We haven’t ratified the UDHR because it’s not subject to ratification because it’s a declaration, not a treaty. We HAVE however adopted it. In fact, we were one of the first nations to do so (particularly since our first lady at the time was one of the key drafters). The UDHR was explicitly adopted to define the meaning of the words “fundamental freedoms” and “human rights” in the UN Charter, which IS binding on all member states (and, yes, the US IS a member state). And, again, WE HAVE RATIFIED THE ICCPR. Please research before you comment so you can comment intelligently.

    Being legal does not make something good, nor does it make something evil. Which is why my post goes on to talk about the BASES for the legality. If you missed that part of my argument, you really DO have reading comprehension problems.

    The laws that I mention have been agreed to by nearly all nation states, and have even been agreed to by the Holy See. What other interests would you like to see included? And I only bring the Holy See into the discussion as the most vocal among the anti-choice tend to bring Catholic teachings into the discussion as their reference point. I am personally an atheist, so I could care less what a religion says about a law, particularly given that I live in a secular society, of which a main tenant is NOT promoting any specific religion. THAT is why I do NOT bring religion anywhere else into the discussion. Religion should not play any part in the making of US laws. NONE.

    CEDAW actually ISN’T ratified by the US (seriously, do you research at all before you comment?), but it has been signed. The ADRDM actually IS binding on the US because it’s been signed and ratified. As for being man-made arguments, I’m sorry, but what other type of arguments are you suggesting we make? Surely not religious ones, because, as mentioned earlier, laws, at least in the US CANNOT be based on religion. It’s one of the core tenants of our foundational values. As for slavery, I explained why it was a poor analogy in the post; perhaps you skipped over that section?

    There are a lot of people out there who actually DON’T know what the law currently is (and it appears you may be one of them). And that’s why this post was written. To discuss what the law currently is; why it is that way; and what it would take to change it. Also, it’s not “legal mumbo jumbo.” It’s the law. If you don’t understand it, that’s YOUR problem, not mine.

    Let me ignore the comparison to Mao, and continue. YES, that is precisely what I mean. If an entity is incapable of being consciously aware, of having a stake in things, IT CANNOT HAVE INTERESTS OF ITS OWN. I’m sorry that you disagree with that, but it’s a fundamental logical conclusion that if I’m not aware of myself, I can’t have SELF-interests. The rest of the post explains what other interests might be applicable to un-self aware entities, but apparently you skipped over that part.

  4. David Gallant

    Bringing knowledge into a discussion is fine. But it can also be distracting. Your intent is to persuade pro-lifers into your camp. And I suppose there may be some out there so easily distracted that this technique might work from time to time but mostly you are simply providing more ammunition. For example there is no argument that all zygotes are the same. An Opossum zygote is not the same as an orangutan zygote. Therefore there is no point to even try to make the distinction that it is a zygote and nothing else. Clearly it is a human zygote we are talking about.

    Also, it pointless to the discussion for the reason that your point is not hinged on the developmental stage of the unborn. Sure, it might go towards making you feel better about the ultimate point. You may be doing a fine job of making the prospective abortion client feel less guilty if they are confident it is not an actual human being killed. But what it is does not matter to the point of your discussion.

    ICCPR. Okay, I’ll be brief. That is a UN treaty we have accepted with many many reservations. Capital punishment is one example. Treating young people as adults under certain circumstances is another. And there are more. And our Senate ratified this treaty with those reservations. [1]

    But that again is merely fluff. All you are doing is saying, “Look at all these people who agree with me. So should you.” I could just as easily provide a list of those who agree with me. [2]

    “But it’s cute that you think religious laws should apply.” Yeah, I have a nice smile also. Seriously, I did not do that. I do not do that. I debate with reason and rely on the strength of my argument and weakness of my opponent. You will not hear me use a religious argument unless you use one.

    That is because with as many religions in this world, I know there is one which opposes another. If you say, “the Bible says do it” I will say, “the Koran says don’t.” And that argument is nullified. And I win on a stalemate.

    Back to contracts, agreements, accords, treaties or whatever / whichever you want to bring up. Once again, regardless how many people you have who agree with you or what sort of documents they have created, there are at least as many of the same to counter them. Sure, at the moment your side has more international support among governments but those things change with the political party in office.

    Any office anywhere. For example, France just went with a Socialist so expect to see more of that sort of stuff over there. Greece just got some Neo-Nazis so expect to see more of that sort of thing over there. These things change like the wind only perhaps slower.

    Now, your condescending attitude regarding my view of your use of the law is not necessary. No more so than your use of the law. That is because we are back to your only point in this entire diatribe worthy of debate: that which is not self aware deserves no human rights. That is it.

    Its biological stage of development has no impact to that argument. The international law community has no impact to that argument. There is no agreement anywhere which changes that fundamental belief of yours.

    That is why slavery is relevant to the discussion though. You attempted to create a circular argument which negates the slavery dichotomy. You cannot use the law to prop up your argument and then use your one actual point to negate the law argument against your point. You must first validate the central point of the argument.

    If you are able to persuade that the unaware deserve no human rights than perhaps your slavery exclusion stands but first you must get past that hurdle.

    [1] http://www1.umn.edu/humanrts/usdocs/civilres.html
    [2] http://www.priestsforlife.org/plgroups/prolifegroups.html

  5. Heather

    Okay, I don't have time to keep going back and forth with someone who obviously has reading comprehension issues. But I will reply this one last time.

    First, the fact that you consider bringing relevant knowledge to a discussion to be “distracting” blows my mind. No, really, it does. And it says a lot about your ability to process information, and your desire to reach “truth.”

    The fact that you're trying to pretend as if I was talking about anything other than human ZEF's in this piece is laughable that it really isn't worth discussing, but I thought I'd mention it just for the giggles.

    As for the rest, I'm not going to respond, other than to say this:

    This post set out to explain to people who may not have a background in these issues precisely what the law currently is, the biology behind the law, and the reasoning behind the law. It also provided what would have to happen in order for the law to change, and why I (and many others) feel that that is a legal impossibility. That is all.

    As for your comment about the un-self aware not being deserving of rights, my argument is explained above. They CANNOT be entitled to human rights of their own accord, because they have no self-interest. If you have no self-interest because you aren't self-aware, you can't claim rights for yourself. Others, however, may be able to claim rights on your behalf, but only IF the conditions mentioned above are met. My apologies that you seem unable to grasp the basic point of this post, but there it is; laid out as plainly as I can make it.

    Anything else you're reading into this discussion is of your own design, and since I can't read your mind (and most definitely don't want to delve into that mess), I'll leave you to your own devices.

    Have a nice day.

  6. David Gallant

    My reading skills are fine. It is your logic skills which are at question. You have a fundamental failure to understand your own circular argument problem. Your entire thesis is based on one element which is entirely glossed over. That needs to be clarified before any other aspect is taken as serious or relevant.

    That single issue being your contention that something not self aware is not entitled to rights. You have briefly elaborated that anything unable to ask for rights must not simply be given rights. Those rights have to be given to them by someone else.

    While that certainly gives a glimpse into your mind and exactly how misguided you are it does little to articulate an explanation. I will take a moment to give you some things to think about. I will keep it simple though because clearly you get confused easily when presented with things unfamiliar to you.

    Suppose you walk into a restaurant intending to order a meal. Suppose that restaurant has no menu or indication of the type of food it serves. Suppose this restaurant serves a type of food you are unfamiliar with and the wait staff speaks a language different from your own.

    How do you know what meals are available? How do you order your mean?

    Rights are a complicated thing. Few nations provide the guarantees the US does. Someone who is transplanted from a despotic dictatorship could easily be unaware of his rights and easily put into slavery without the guarantees afforded here without having to ask.

    Rights belong to you independent of you being aware of them.

    Now, as for the preborn and the utterly unaware: take a comma patient. Often people in a comma never come out. The family is sometimes given the option to remove life support. In those cases you are correct, the continued right to life is given up and made a decision for another party. But the part you are missing is that this scenario never takes place when clear improvement is shown.

    Therefore the argument of self aware being a requirement for a fetus is moot.

    Unless you can back it up in some way.

  7. Heather

    Published because you posted, but this is the last time. And, no, i will not refute, because, as I mentioned in my last post, i have better things to do with my time than argue with someone who has such poor reasoning skills. Have a nice evening, David, but please don't bother submitting any further responses to this post – they will not be published.

    p.s. COMA.

    Fuck it. Once an entity has rights, you can't take those rights away UNLESS YOU SHOW A COMPELLING REASON, AS OUTLINED ABOVE. In your coma (COMA, btw, not comma) patient scenario, that patient WAS self-aware at some point. As were slaves. Whether or not an entity is aware of it's RIGHTS is a different matter entirely than being self-aware. Rights exist regardless of our awareness of them, regardless of our respect for them, regardless of the respect of those in authority.

    But an entity which is not self-aware CANNOT claim rights for itself because it isn't aware. Currently ZEF do NOT have rights. Period. Full Stop. What I have outlined above is what will be necessary to give ZEF rights. And, as outlined above, any attempt to give ZEF rights will necessarily impinge upon the rights of the woman carrying said ZEF, and is therefore highly suspect, if not outright (actually, almost certainly outright) illegal. Fin.

  8. KathyD

    To Pick a Nit in The Above:

    Since the embryo-fetus takes over the woman's body; that is a medical fact (and I'd be happy to quote from the leading obstetrical textbook used in medical schools if you like). If that “taking over” is done against the will of a woman, and if she's REQUIRED by law to allow that embryo-fetus to make use of her body against her wishes for almost a year, then that is a very good imitation of slavery. Don't you think?

  9. Dan Devlin


    I believe you are doing your very best to justify your position. I compliment you on your dedication and hard work. It does, however, seem that David does understand your argument, but I am not sure you understand his. I believe it would be to your benefit to try a little harder. (I say this with sincerity)

    If the UDHR, ICCPR and U.S. Constitution DISagreed with your beliefs, would you still say they are correct, because they are “law”? I don't think you would.

    You seem to think rights are given by laws, and it is easy to see how many may feel this way. But, if this is the case, then the rights we have can be withdrawn, simply by those who happen to hold power, changing the law. Do you really think people should be able to be killed simply because some jurisdiction's “law” say it is OK? (Think, —-that is not as far fetched as it might seem.)

    The UN is a body of individuals who think they can set moral principles for all others. They have opinions ONLY. I gave them no authority over me. Did you give them authority over you? You are stuck on the “law” which you know can change. Moral principle does not change, the understanding or implementation of it might change, but the moral principle, which is the bases of Fundamental Human Rights, does NOT change. This is what you are missing from Davids position. He admits our laws are flawed, but knows there is something higher than “laws”.

    Heather, you seem frustrated because you can't see how David could still hold to his position even though you provided so much information. But, if you could read your own work objectively, you would see that it seems you are trying to convince yourself. Often, this is what we do just before we find that little bit of truth that, finally, causes us to change our position. I've seen it happen many times, but it only happens with those who a genuinely searching for the truth. And I suspect you are.

    It is a wonderful thing to see happen, because you know the person did the hard work to discover that truth. Look around you, see how many have been staunchly one way, only to become another at a different point in their life.

    That's why David is trying to get you to see, it is bigger than “laws' . I'm genuinely proud of you for your extensive efforts, but I think most people will see the danger in your argument. I think you may, as well, if you look closely.

    I've seen people fight very hard for things they believed in, only to later tell others how wrong they truly were.

    In one breath you speak as though such rights are granted to us by these law-making-bodies, then, in the next breath, you imply that rights are always with us. “Rights exist regardless of our awareness of them, regardless of our respect for them, regardless of the respect of those in authority. ” How can this be if those in authority make them?”

    Just as you use words that you SAY have a particular meaning, others recognize you are just using the definition, you say is the “legal” definition, because you think it supports your position. Example: You talk about the Constitution of the United States, refer to a single interpretation by an individual or a few, and conclude that “Granting natural personhood to ZEF is a legal impossibility, both constitutionally and under international human rights law. Of course you know that is incorrect.
    (To be continued)

  10. Dan Devlin

    (Continued) PART II

    What your essentially-entire argument is, is that women have rights and all others, if they even have rights, could only have rights inferior to the rights of women. What happened to the concept of equal rights? Do you have a right to have children, if you wish? I think you would say you do. Yet, nowhere do you even mention the idea, that David would understand, that the right to have children is not just that of women, but men, as well. Anyone reading this piece would conclude you only care about being able to eliminate YOUR mistakes at all cost, no matter whose rights you tread upon. Can't you see this?

    You talk about biology, but ignore the biological fact that no woman creates a new human being on her own. If a woman has a right to destroy her descendant, doesn't a man have that right, as well? These are fundamental principles, not something to be manipulated by government or courts. Believe it or not, they are fundamental questions virtually all have the answer to. You do also.

    If we do not protect human beings at all stages of their existence: why protect them at any stage? Because YOU say so? Because YOU want the protection? Fundamental Human Rights do NOT work that way, no matter what law says it is OK to violate the rights of the vulnerable.
    Fundamental Human Rights are Fundamental because virtually all want them for themselves, not necessarily because they want them for others. But to be assured of them being available for themselves, people must make sure these rights are available for all innocent others.

    I may be wrong, but I think you want to be right, and have searched for what supports your view, but I challenge you to open your eyes just a little wider. See what David is saying, because men like David would be the first ones to rush to your rescue if someone was trying to destroy you, and trying to use THEIR “law” to justify it.

    (to be continued)

  11. Dan Devlin

    (continued) Part III

    Heather, I think you believe you have systematically gone through the points that prove abortions can never be legally prohibited, mostly because it denies women their right to self-determination. I think you would agree, however, in most cases, women, if concerned with NOT having a child, could exercise their self-determination and NOT perform the activity that produces new human beings.

    If you really care about “rights”, particularly the right to continue to exist, no one should (and can) have the “right” to terminate the existence of any innocent other. Zygote, Embryo, Fetus, child, adolescent, adult, senior, elderly, congressman, president, mother, father, priest, minister: ALL are simply terms that describe human beings -being human, at some stage, some position, but ALL just being human.

    When we talk about rights but exclude others from the rights we claim, it gives permission to others to do the same with us. I can say with reasonable certainty that you, likely, think you have the right to continue your life without being eliminated from existence, by anyone else, including your mother. Though you were a zygote, embryo, fetus (all just terms for a particular state of being human), and even though you would admit that if you were NOT allowed to continue through those stages you would NOT be here today, you do not want to recognize the “right” of others to continue their lives, as well. Therein rests the truth about Fundamental Human Rights. Either we agree to recognize, honor and defend them for all innocent others or we have no just claim to any right at all.

    It is not so much claiming rights that is important, but the recognition of the rights of others, by all who wish to possess them. If we stress the need for that recognition, we won't have to claim ours, others will simply know all innocent others possess them, and, therefore, will not violate ours. It is genuinely doing no more than TREATING OTHERS AS WE WISH TO BE TREATED.

    The truth is: You wish to be able to do to others that which you would have no one do to you (when you were a zygote, embryo, fetus, or whatever you wish to call you when you were at those stages of being you). Isn't that true? No one successfully aborted you, but you want to be able to abort innocent others, and you want society to recognize you “right” to do so. Isn't that true, too?

    The Concept of Fundamental Human Rights will never recognize such a right that has you treating others in a way you never want to be treated.

    It is worth considering: If we killed off all those who were not self-aware, who do not possess sentience, as you describe it: THE TRUTH IS —-you and I would not exist. Correct me if I am wrong.

    Human existence is far greater than you or I, but we are undeniable contributors to what the experience of human existence will become.

    One final thing: Consider who is your real friend: Is it one who fights for the rights of all innocent others or the one who fights for the right to destroy others? I think you will find someone like David could just be your best friend of all. I say this because, from what I have seen, he is trying to be a friend to all. We have all invested a lot of time and energy, here, let us use the truth to help us make good of it. THE BEGINNING

  12. Bill Josephs

    I left an important comment that got deleted. Will you continue to delete all of our comments in an act of prejudicial censorship or will you allow opposing views whose scientific, moral, theological and logical arguments trump the Pro Choice ones?

  13. Pingback: On Personhood, Fetal Homicide, And The Cleveland Kidnappings | Antigone Awakens

  14. Pingback: In Which I Discuss HR1797, AKA Why Politicians Should NEVER Play Doctors | Antigone Awakens

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