Intrinsic Human Rights – by function or by nature?

Pervading a lot of popular level discussions of morality and social justice there is talk of “human rights”, often modified by adjectives such as “innate”, “intrinsic”, “inherent” or “unalienable.” The idea seems to be that, by virtue of being human, we are entitled to various things – for instance, education, free speech, life, private property, etc. When the issue comes to the right to life of the unborn, however, a different tactic seems to be taken quite frequently.

 

One move is to de-humanize the unborn child – “it is a clump of cells” – and hence to make out that it is not a human child. This tactic seems to be largely an emotional appeal, because all humans are clumps of cells. Certainly, adult humans are very complicated clumps of cells, but unless one wishes to invoke the idea of an immaterial soul (an idea which would complicate the issue even more), then the distinction between an unborn child and a newborn child must be made on grounds other than material constituency.

More sophisticated versions of the “clump of cells” argument turn on the much more real distinction between the clump of cells which is an adult human, and the clump of cells which is an embryo. Here, the right to life of the prenatal child is objected to on the grounds that the child is not functionally a human being.

Our intuition about who has a right to life, even for those who think that prenatal children are excluded from the category, is veritably pushed to difficult limits by assigning human rights (and consequently, the right to life) to only those who are functionally human. The difficulty is this: whatever attributes are said to be the ones that define a functional human, there can be found some post-natal human that lacks it and who we would still want to consider "fully human".

For some, particularly the consistent consequentialists, this is not a problem. Some people argue that yes, human rights must be given to people who are functionally human, and then go on to propose criteria for such a state: perhaps capacity for abstract thinking, or some loosely defined form of self-awareness. For pro-abortion activists, such definitions may seem appealing, and yet, they tend to leave the line in an unacceptable place - abstract thinking comes years after birth, and when self-awareness comes depends on the definition, but it is clear that such a definition would not discriminate between the mere location of the child (ie, inside or outside the mother's womb).

It seems clear that functional definitions of humanity will point to attributes that are not necessarily developed until definitively post-natal infancy, leaving as legitimate killing the immediately post-natal child, that is to say, infanticide. Still, such a view does not end at that side of life - it calls into question many elderly people, who by the end of their lives also lack various attributes common to adult humans. Put bluntly, there are elderly people who could very easily be denied their functional humanity, and so lose the right to live; perhaps it would be thought of as legitimate, even if sad, to kill our society's elderly. Maybe arguments could be made about the resources they would take up if they were not killed, or their diminished quality of life made grounds for their death.

Without attempting to be overly-precise, I suggest that human rights can either be had on the basis of the human nature of a being or the human function of  being, that is to say, based on what the being is or what the being does/can do. Since most people are not willing to strip elderly people or newborn children of their human right to life, it must follow that most people are compelled to grant the right to life on the basis of nature, that is, on the basis of the humanity of the subject.

This has important ramifications for the abortion debate, because if this is the case, then prenatal humans have human rights. This does not, in fact, settle the issue of abortion outright, because the language of rights is too malleable - for instance, some argue that one can have rights to do wrong, or that there is a hierarchy of rights such that, in some cases (war is suggested example), rights that seem fundamental (like the right to life) can be rejected for the sake of some other right. In short, the very concept of a right does not lead logically to its unalienable character, at least not without some more argumentation. This hierarchical view of rights seems to be the one given by a leading feminist in the third wave feminist movement, Naomi Wolf:

"War is legal: it is sometimes even necessary. Letting the dying die in peace is often legal and sometimes even necessary. Abortion should be legal; it is sometimes even necessary. Sometimes the mother must be able to decide that the fetus, in its full humanity, must die. But it is never right or necessary to minimize the value of the lives involved or the sacrifice incurred in letting them go. Only if we uphold abortion rights within a matrix of individual conscience, atonement and responsibility can we both correct the logical and ethical absurdity in our position and consolidate the support of the center." ("Our Bodies, Our Souls", October 16th, 1995, The New Republic)

Various people have rebutted Wolf by asserting the more fundamental nature of the right to life - it is, after all, a requirement of most other rights, since almost any other conceivable right assumes that the person is alive. That line of thought may be fruitful, and yet, I wish to suggest an alternative: that rights are misleading and incorrect concepts in the realm of ethics, that they should be relegated to the realms of legal and political philosophy and that instead, ethics should use another conceptual framework which sheds more light on these issues. Whilst what I have proposed in terms of rights seems to still be valid under the current legal framework, the new framework which I will propose will give the ethical dimension more clarity.