Guest post by Terry Verhoeven
THE LIFE CON ACT
Just a fortnight after making an historic fourteen hour filibuster-for-liberty speech, Jekyll-and-Hyde Senator and 2016 Presidential Contender Randal Paul last week showed his other side when he introduced to the US Senate his Life At Conception Act (hereafter the 'Life Con Act''), an abominable rights-infringing piece of legislation that aims to "define life at conception in law, as a scientific statement" (according to Paul's website).
If passed, the Life Con Act would have the effect of transforming, by decree, hundreds of thousands of innocent individuals into murderers. It would also cause untold suffering for thousands more who would be forced to raise children they didn’t plan, never wanted and can't afford.
Some "scientific statement."
The vicious idea that an actual human being is the moral equivalent to a piece of protoplasm is made possible by conflating the abstraction of “the right to life” with a specific human being's right's to life. In fact and in law it gets even worse, because Senator Paul’s law deems a pregnant woman morally inferior to a piece of protoplasm—since under his legislation biological cells would be granted a legal mortgage over the lives of their unsuspecting host.
A piece of protoplasm is not a human being. Only by ascertaining and defining by a rational standard what a human being is does it become possible to identify when a specific right to life applies.
A LESSON IN RIGHTS*
The function of rights was capsulised by Miss Rand in her essay 'Man's Rights':
“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.
In other words, rights serve the purpose of enabling individual morality to exist in a social context.
Rights are not a gift from God, nor are they granted by governments or society at large; they are, like all morals, objectively identifiable principles which human beings need to discover for themselves using their reason.
Rights exist in the first instance in the form of a recognition of the facts of reality, i.e. as mental existents. It is only when a group of individuals who, after having identified their rights, enter into a legal pact with one other to uphold each other's rights that those rights come into existence in the form of a relationship among men. It is only in the form of a 'relationship among men' that rights enable human beings to live as human beings in a social context, i.e. as free individuals able to act in accordance with their own rational judgment, restrained only by the physical laws of nature and the obligation to respect other individuals' rights to freely to do the same.
For all his filibustering for liberty, such is the nature of rights that Senator Paul is yet to grasp.
Only human beings can possess rights because only human beings can identify, understand, agree to and adhere to rights. Compare this to so-called “animal rights,” for example, where as PJ O’Rourke famously observes, you can tell the lion all you like that it’s wrong, but he’ll still rip the guts right out of Bambi.
The 'right to life' is said to be the most fundamental right. This is but an abbreviation; it is a human being's right to her life that is the most fundamental right, i.e. one's right to humanhood.
Humanhood is defined as "the state or condition of being human."
The right to humanhood is, I submit, the right from which all other rights are derived, including the right to life, which is merely its corollary.
Humanhood presupposes that one has a conscious existence, which presupposes that one is alive, i.e. that one is an actual living human being and not just a human body.
Identifying what it is that qualifies one for humanhood, and ipso facto for possessing rights, is, I submit, the logical starting point to objectively identifying what rights entail.
LIFE: NECESSARY BUT NOT ESSENTIAL
As far as we know, all life forms on Earth (at present) supervene on other life forms. Gametes that precede a zygote have 'life' in exactly the same sense that a zygote has 'life,’ it is just that a zygote's 'life' exists in a different form to that of gametes. In other words, new life no more comes into being at time of conception than new matter comes into existence at time of conception. Life exists as part of a continuum of life going back to each individual life form's oldest biological ancestor. What "comes into being" at time of conception is not new life, but a new form of life.
The state of being a human being is not defined by the characteristic of life any more than it is defined by water molecules or hydrogen atoms or anything else that is equally 'necessary' for a human being to exist. If one needed only to focus on a necessary characteristic and not on the essential and culminating characteristics of being a human being in arriving at what the most fundamental right is, one could argue that the most fundamental right is to Higgs boson particles, without which matter itself would not (supposedly) exist.
Clearly, this would be absurd.
HUMANNESS – THE ESSENTIALS
According to the Life Con Act, to qualify for humanhood requires possessing two characteristics: life and the human genome. Here is the Act's wording:
The terms ‘‘human person’’ and ‘‘human being’’ include each and every member of the species homo sapiens at all stages of life, including, but not limited to, the moment of fertilization, cloning, and other moment at which an individual member of the human species comes into being.
This set of qualifiers excludes the two essential characteristics of humanhood or "the state or condition of being human": i.e, that humans each possess consciousness, and each enjoys at least the capacity to reason. Senator Paul's Act re-defines an actual human being out of existence by excluding what actually gives a human being their humanness.
By way of analogy, if it were 'Loaf-of-Breadness' that we were aiming to identify, and we were to adopt Senator Paul's logic, we would conclude that a single edible seed of grain has "loaf-of-breadness." Or if we were defining “beerness,” we would accept a single hop as our accompaniment to our “loaf.” Try lunching on that.
To exist as an actual loaf of bread though, or as a pint of beer, certain other essential characteristics must be present. The presence of hops in beer or a grain seed in a loaf of bread is, like the presence of the human genome in a human being, a necessary but not essential one. Having the quality of being edible is also necessary but not essential, just like the quality of being alive is necessary but not essential for a human to have humanness (without life what exists is the remains of a human being - a corpse, but not an actual human being). The two essential qualities of a loaf of bread is the raised bread (of which grain is a necessary component) and that the bread has the capacity to be sliced before being eaten. Whether the loaf is in fact ever sliced or not does not alter the fact that it is still a loaf, but that capacity of being able to be sliced must exist or else the loaf would cease to be a loaf.
So what is a human being's essential qualities? i.e. what essentials give rise to 'humanhood'?
Ayn Rand wrote that man is
an indivisible entity of matter and consciousness. [Emphasis mine]
This is most profoundly true, but what form of matter and what type of consciousness?
The form of matter is trivially easy: that which possesses the human genome. As mentioned, the material component of humanhood is necessary but it is not essential. This is because consciousness emerges from the material existence that gives rise to it and the type of consciousness humans have his ultimately what defines humans as being human. When it comes to consciousness, the difference between man and every other form of sentient life is that human beings as a species possess the capacity to reason, which means to think conceptually, a characteristic which may or may not be realized during a man's life (just as being sliced may or may not be realized during the life of a loaf). 'Humanness' as a class may therefore be defined as "possessing the indivisible attributes of human form, sentience and the capacity to reason." Or in Aristotle’s abridged formulation: man is the rational animal.
The inception of humanness and one's qualifying for humanhood can therefore be said to take place at the precise moment when sentience is first attained by any member of the homo sapien species where that member also possesses the capacity to reason.
One may ask why sentience is one of the qualifiers for humanness and not the capacity for sentience, like with the capacity for reason? The answer is that there is no guarantee that reason will ever be employed in one's life as a human being, just like there is no requirement that a loaf of bread be cut during its life in order for it to be a loaf. Without consciousness however there can be no state of 'being' a human, just like without raised bread there can be no state of being a loaf of bread. To 'be' in the human sense is to be conscious. A human body that never attains consciousness is like a bread dough that never rises. What one has is that case is dough, or unleavened bread, but not bread fit for a loaf of bread.
It is important to note the the right-to-humanhood applies from the moment that humanness is first present right up until the moment that humanness is permanently lost. The points in between these two times is called a human's life.
So what should the litmus tests be for the three characteristics that culminate in and qualify one for 'humanhood'?
I propose the following, and stress again that these three characteristics are indivisible:
- Form or presence of the humane genome
If it looks human and acts human, unless there is good reason to doubt it, then it is safe to say that it is human. If there is doubt , let scientific investigation confirm the taxonomy.
- Capacity to Reason
The existence of a functional neo-cortex. A functional neo-cortex is essential to reasoning. As science and technology progresses, this may be able to be made more specific.
- First sentience
First sentience first occurs at birth, upon commencement of breathing.
Ayn Rand was correct that a human being's life begins at birth, but not for the reason she thought she was. Pre-Christianity, the prevalent view was that awareness or sentience begins with one's first breath. Testament to this fact is the etymology of the word 'spirit' which is derived from the Latin word spiritus, meaning "breath".
The ancients, as it turns out, were right. And the latest scientific evidence confirms it.
Professor David Mellor from Massey University's Animal Welfare Science and Bioethics Centre published an influential scientific review in 2005 which observed that biochemicals produced by the placenta and fetus together with the low oxygen environment in-utero have a sedating and anesthetizing effect on the fetus. The fetal cocktail includes adenosine, which suppresses brain activity; pregnanolone, which relieves pain; and prostaglandin D2, which induces sleep. Combined with the low oxygen environment and the warmth and buoyancy of the womb, this brew lulls the fetus into a near-continuous slumber, rendering it effectively unconscious no matter what the state of its anatomy. It is only upon the traumatic event of birth—entering a shocking and wholly new environment—that breathing commences, flushing oxygen through the blood stream, whereupon the cocktail of sedating and anesthetizing hormones from the placenta ceases, and the newborn is jolted into consciousness and thus (existential) life for the first time.
(Here is a link to a subsequent publication from Professor Mellor which does not require subscription or payment to read but which covers his findings: http://altweb.jhsph.edu/wc6/paper79.pdf_)
Due to legal restraints involved with testing and researching human fetuses, and the stark difference between studying premature babies in an ex-utero environment compared to a fetus in-utero, Professor Mellor's work is the most advanced available on the subject.
What of the fervent claims that the animated existence and reactiveness of fetuses in-utero is clear evidence of consciousness while in the womb? Such claims are, I submit, nothing but psychological projection without scientific basis. Proof in point…
Let us now investigate a medical list of symptoms and signs:
- No evidence of awareness of self or environment and cannot interact with other people.
- Purposeful responses to external stimuli are absent, as are language comprehension and expression.
- Signs of an intact reticular formation (eg, eye opening) and an intact brain stem (eg, reactive pupils, oculocephalic reflex) are present.
- Sleep-wake cycles occur but do not necessarily reflect a specific circadian rhythm and are not associated with the environment.
- More complex brain stem reflexes, including yawning, chewing, swallowing, and, uncommonly, guttural vocalizations, are also present.
- Arousal and startle reflexes; eg, loud sounds or blinking with bright lights may elicit eye opening.
- Eyes may water and produce tears.
- May appear to smile or frown.
- Spontaneous roving eye movements—usually slow, of constant velocity, and without saccadic jerks—may be misinterpreted as volitional tracking and can be misinterpreted by family members as evidence of awareness.
- Cannot react to visual threat and cannot follow commands.
- The limbs may move, but the only purposeful motor responses that occur are primitive (eg, grasping an object that contacts the hand).
- Pain usually elicits a motor response (typically decorticate or decerebrate posturing) but no purposeful avoidance.
- Fecal and urinary incontinence.
The above is a medical description, but not of a fetus—it describes someone in a Persistent Vegetative State ('PVS'). PVS involves a complete absence of awareness, but there are signs of non-conscious wakefulness. (see http://www.merckmanuals.com/professional/neurologic_disorders/coma_and_impaired_consciousness/vegetative_state.html)
A fetus displays no more signs of awareness than someone in a Persistent Vegetative State, and therefore there is no evidence to suggest fetuses are aware (i.e. conscious/sentient) any more than the poor person in this state.
Patients in a PVS are also reported as responding to familiar music and sounds as fetuses do, whereby small changes in heart rates recorded. This is known as an 'auditory evoked response' and is not evidence of a conscious state. Auditory evoked responses are an entirely physiologic response that results in a change in autonomic function, involving brain stem function and not higher brain function required for consciousness (see http://en.wikipedia.org/wiki/Auditory_brainstem_response)
For another example to demonstrate that fetal movement and responsiveness to stimuli is not indicative of consciousness one need only look at babies born who are born without a brain. The rare condition called Anencephaly, is where the cerebrum is missing and all that exists in its place is a brain stem. Nickolas Coke is just one such recorded case. Nickolas lived until he was 4 years old without any artificial support. He would feed, make noises, respond to various stimuli, even smile. Yet he had no (higher) brain.
When one looks at the evidence rationally, one needs to dismiss the mystical idea of ensoulment (which assumes the existence of a God to do the 'ensouling') and focus solely on when sentience is achieved. In focusing solely on when sentience is achieved, physiologic responses must be dismissed as evidence of sentience. The only other scientific evidence provided for fetal sentience other than evidence of physiologic responses involves evidence from studies done on pre-term babies. This too must be dismissed. All that is left is the extremely compelling evidence of Professor Mellor et al which shows that fetuses remain unconscious until they are born and take their first breath.
When one replaces the non-essential characteristic 'life' with the two essential and indivisible qualities of 'humanness' being prior consciousness and the capacity to reason, the right to life is not lost, nor are any corollary or consequential rights of the right to life lost. All that results is a (more) clear demarcation point as to when rights apply.
I submit that Ayn Rand hinted at humanhood being the foundational right in the following quote but she never took the step of expanding on it:
The source of man’s rights [is] the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival.
I have merely expanded on this by introducing the concept of human life beginning at humanhood, with the fundamental right being the right to humanhood.
Miss Rand also spoke of the fundamental principles from which one must approach the issue of abortion:
The basic principles here are: never sacrifice the living to the non-living, and never confuse an actuality with a potentiality. [Ayn Rand, FHF Q&A following "Egalitarianism and Inflation", 1974, Ayn Rand Answers p.17]
I submit that there I have followed these basic principles in arriving at the fundamental right being that of humanhood, and concluding from their application that humanhood begins at birth upon taking one's first breath. Furthermore, this conclusion is consistent with Miss Rand's conclusion that life begins at birth, only I have arrived at the same conclusion via a slightly different route of reasoning.
Instead of focusing on the 'entity-ness' of a born versus unborn baby so as to discern when it is 'alive' as a human being, I have focused on the identity of what makes a human being a human being (a baby's separateness from its mother is, like with the characteristic 'life', a necessary by not essential quality).
I submit that the route of reasoning I have taken in grounding the right to life in the right to humanness avoids the potential objection to Miss Rand's position that an unborn child is a "part" of it's mother as opposed to being an entity in it's own right and is merely attached to her, and that a baby is only alive in the human sense as a result of it being separated from it's mother.
In conclusion, I submit that the approach I have taken has expanded on, is complimentary to and is reinforcing of Miss Rand's theory of rights and supports her personal conclusions on the subject of abortion rights while additionally and at the same time identifying the demarcation point for when a human being's right to life ends.
* * * * *
* I shall attempt here to expand on Ayn Rand's theory of rights by introducing what I consider to be a key foundational principle which I submit Miss Rand either omitted, or did not sufficiently highlight in her work. I shall then apply this expanded theory to the subject of abortion rights to arrive at a perfected answer from an Objectivist viewpoint.