Miscarriage and Person‐Denying

I am going to argue that grief in miscarriage tells against person-denying arguments for the permissibility of abortion.1 By “person-denying argument,” I mean arguments for the permissibility of abortion that rely centrally on the claim that the foetus lacks moral status. When I say that it “tells against,” what I mean is that we should take grief responses to miscarriage as defeasible evidence against the soundness of such arguments. In “Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion,” Elizabeth Harman considers the worry that what she calls the “very liberal view” of early abortion—according to which early abortion is morally neutral and needs no justification—is “incompatible with any reasonable view that takes seriously the badness of early miscarriages.”2 Harman argues that, despite appearances, it is not.3 I will argue that, as regards person-denying arguments, the incompatibility worry deserves to be taken seriously, because grief following miscarriage presupposes foetal moral status. In this article, I would like to take a focused look at what miscarriage tells us about the moral terrain of abortion—at what kind of moral evidence it is, and how it bears on moral claims about abortion. My worry is that grief is a very common response to miscarriage, and that grief presupposes moral status. In grieving the loss of an entity, one perceives that entity to be someone of special value. The claim that the foetus lacks moral status then implies that feeling grief over the loss of it is based on a mistake—a cognitive error, like a mistaken belief—since the evaluative content of the belief runs contrary to the lacking moral status claim. Although it is not the case that all women and couples who experience miscarriage experience grief, many do.4 If we claim that the foetus lacks moral status, then we have also to claim that women and couples who grieve their miscarriages are wrong to do so: that they are making an error. And on pain of disregarding women's testimony, I argue that we ought not accept such a conclusion lightly. Grief in miscarriage, then, is defeasible evidence against the claim that the foetus lacks moral status. My argument is not an argument against the permissibility of abortion, and nor does it, to my mind, lend support to arguments against the permissibility of abortion. My claim, rather, is that if we take the experience of miscarriage seriously, it casts doubt on the plausibility of this particular sort of account of the permissibility of abortion. If my argument is a good one, then it gives us reason to pay attention to other ways of conceptualizing the moral terrain of pregnancy more broadly, and abortion in particular. In Section 1 of this article, I present the person-denying argument in general terms, and its place in the abortion debate. In Section 2, I discuss two versions of the person-denying argument, and argue that only the stronger version of the argument works—if either does—to motivate on its own the moral permissibility of abortion. In Section 3, I argue that the stronger version of the argument makes grief following miscarriage mysterious. I draw, here, on Martha Nussbaum's discussion of grief, and argue that if the foetus is outside the sphere of moral concern, then grief seems mistaken. In Sections 4 through 6, I explore alternative accounts of moral status. These hold the promise of resolving the tension between miscarriage and person denying—Mary Anne Warren's “pluralist” account, according to which being loved generates moral considerability; Elizabeth Harman's Actual Futures account; and a two-tiered account of foetal moral status. I argue that none of these alternatives can settle the tension. A standard way to motivate the claim that abortion is morally permissible is to claim that the foetus is not a person. This argument can take (at least) two forms. Either the foetus is not a full rights-bearer, and so lacks a right to life, and so killing it is not a rights violation (much like, according to some, killing non-human animals does not involve a rights violation); or a foetus is not a morally considerable entity, so that killing it is a morally neutral act (much like killing a house plant, or killing bacteria).5 The idea is that, since the foetus isn't morally considerable in the appropriate way, abortion must be morally permissible. Just as killing a houseplant may be wrong for aesthetic reasons (my office was prettier with a plant), or for prudential reasons (it will cost £8 to replace the plant), or other non-moral normative reasons (we have a strong tradition of green thumbs in our department), but cannot be wrong for moral reasons, this argument is meant to show that killing a foetus just can't be morally wrong. If killing a foetus can't be morally wrong, then abortion is just not a moral issue. And the basic idea is pretty simple: foetuses are one of us, so it's wrong to kill them, just as it would be wrong to kill you or me. Thus, making them dead is of moral concern, and, in particular, is morally wrong. Both person-denying arguments and their person-affirming counterparts are a regular subject of scorn amongst some moral philosophers. Focusing on the status of the foetus, it is argued, is simply not apt, since pregnancy happens within the body of a woman, and women are uncontroversially persons. Thus, the permissibility of abortion—an act that importantly impacts on the rights of a (known) person—cannot hinge on the status of the foetus alone.6 However, foetal personhood remains “in play” in the literature in both person-denying and person-affirming form for a variety of reasons. Person-affirming arguments remain in play—probably—because not all moral philosophers are worried about women's rights;7 not all are convinced that pregnancy is a state that a woman could have a right to exit (exceptions for rape are usually built into this standpoint);8 and so on. That person-denying arguments continue to appear in the literature9 is, on the face of it, slightly more mysterious. One might very reasonably wonder why, given the never-ending nature of the dispute over the moral status of the foetus, and given the undeniable nature of the rights (or anyway, of the full moral status) of women, anyone who cares about abortion rights would still be talking about personhood. On reflection the answer is clear. If we can show that making a foetus dead is entirely outside the sphere of moral concern that is the end of the story: case closed. If killing a foetus is like killing a fern, then we don't need to specify what women have a right to, we don't need to give an account of why women's rights are stronger than those of the foetus, why self-defense, bodily autonomy, or what-have-you trumps life. If the foetus is not morally considerable, then the abortion story is very easy, and the discussion can end. In some very real sense, foetal non-personhood promises to be a kind of holy grail of the pro-choice position, even if some philosophers consider the pursuit of it altogether too risky.10 Unfortunately, this holy grail is not the prize it might appear. If the person-denying argument for the permissibility of abortion works at all,11 it works only in its stronger form, wherein the foetus is entirely outside the sphere of moral concern, as is a fern or a carrot or a sheet of typing paper. And this stronger form simply goes too far: it is at odds with our beliefs about foetuses, about pregnancy, and about pregnancy loss. In its weaker form (to be outlined below), the person-denying argument (much like its person-affirming counterpart) proves nothing about the moral permissibility of abortion. In the next section, I present the weaker form of the person-denying argument and argue that it cannot motivate the claim that abortion is morally permissible. In Section 3, I present and discuss the stronger version, and argue that it proves too much. So, on this version, the claim that's meant to justify abortion is the claim that the foetus lacks a right to life. This claim cannot, on its own, motivate the claim that abortion is morally permissible, just as the claim that a foetus has a right to life cannot, on its own, motivate the claim that abortion is morally impermissible.13 Rights to life just can't do such things, since rights and lives don't exist in a moral vacuum. It is plain that having a right to life, on its own, does not make a creature such that every possible act of making it dead is morally impermissible. Sometimes self-defense comes into the picture, for example. When I act in defense of my life, the fact that the person threatening me is the sort of creature that typically has a right to life cannot on its own tell against my taking deadly action. Many would argue that I am entitled to take such action even if my attacker is innocent.14 Self-defense isn't a stand-alone exception, though. It is but one illustration of the limitations of rights to life. Physician-assisted suicide may (arguably) violate a right to life but is probably not morally impermissible (or anyway, is not clearly so).15 In trolley-style thought experiments, we can very easily arrive at the conclusion that we ought to divert the trolley, even if the one on the spur absolutely has a right to life. Many think that killing in a just war is morally permissible, even though soldiers are persons, and so on. It just isn't the case that being the right sort of candidate for a right to life is decisive in anything but the most contrived of situations.16 Context always matters. Abortion is one contextual milieu in which the foetus is implicated. Making a claim about the status of the foetus cannot tell us anything about the rights and wrongs of abortion itself, since it only gives us one piece of the moral puzzle.17 That a right to life does not, on its own, mean that killing is impermissible is fairly obvious. The less familiar but equally true claim is that the lack of a right to life does not, on its own, mean that killing is permissible. Just as rights don't exist in a moral vacuum, their absence doesn't either. In an earlier work, I presented the case of the tree lobster to illustrate this point. The tree lobster (specifically, the Lord Howe Stick Insect) is one of the rarest insects on earth. It numbers in the hundreds, and its entire population is divided between a small rock in the Indian Ocean (Ball's Pyramid) and the Melbourne Zoo. It is an incredible creature, its common name indicative of its huge (by bug standards) stature and crustacean-like exoskeletal build, and its peculiar terrain. However, in the end it is just a bug, and therefore probably does not have a right to life. And yet, it is clear that we ought not kill tree lobsters. Indeed, depending on what account we give of the moral importance of maintaining ecosystems, it might be that killing tree lobsters is strongly morally bad. One might object that killing tree lobsters doesn't wrong the tree lobsters themselves; that it is only bad insofar as it wrongs persons by harming the environment. But this is just the point: it does not wrong the tree lobsters to kill them (since they have no right to life), and yet it's wrong to kill them. Lacking the right doesn't preclude there being other moral reasons against it.18 One might, further, object that killing tree lobsters is not, after all, wrong and that sensitive environmental types are simply mistaken in this moral judgment. But this does not salvage the weak version of the person-denying argument since, so long as the claim that something can both lack a right to life, and be such that you ought not kill it, is coherent—and, even if it's false, it's not incoherent—there is a gap between the lack of a right to life, on the one hand, and killing permissibility on the other. Finally, one might object that, if circumstances were different, it wouldn't be wrong to kill them. But that's exactly the point. Circumstances matter to killing permissibility. The weak form of the person-denying argument simply does not work on its own as a defense of abortion. Just as a foetal right to life does not (on its own) imply that abortion is impermissible, the lack of a foetal right to life does not (on its own) mean that abortion is permissible. So, if this weak claim is all that's meant by person-deniers—that is, if the person-denying argument just says that abortion is permissible because foetuses do not have a right to life—then the person-denying argument can't do what it's meant to do: it doesn't settle the debate over abortion rights.19 This strong version of the argument would, if it worked, be the pro-choice holy grail. If the foetus were like a houseplant—totally outside of the realm of morality—there would simply be no question: having an abortion would be like cooking a carrot, morally speaking; and the status of abortion would follow of necessity from the nature of the foetus. I think there is reason to be skeptical that even the strong version would work, but for the sake of argument I will set this skepticism aside.22 My focus in this paper, again, is to draw attention to the fact that even if it does work—that is, even if we are entitled to say that, if the foetus is outside the sphere of moral concern, then abortion is permissible full-stop—we oughtn't accept it lightly, because accepting it would require potentially major revision to our understanding of the nature of pregnancy. In particular, my worry is that grief following miscarriage looks mysterious if we accept the claim that the foetus is not morally considerable at all, because grief appears to require the loss of a beloved someone; that is, grief seems to require a moral patient. One of the most often identified emotional responses to miscarriage picked out in the empirical literature is grief.23 The evidence, then, seems to point to miscarriage being experienced by many women and couples as the loss of a loved one. The concern is that the strong version of the person-denying argument—according to which, the foetus is wholly outside the sphere of moral concern—belies the self-reporting of women and couples who experience miscarriage. It denies the reality of their lived experience, since it implies that the foetus is not valuable in the appropriate way. Not all people who experience miscarriage experience it as the loss of a loved one. Some will surely feel it as something more like the scuppering of hopes and dreams. For others it will be a relief: in cases of unintended and unwanted pregnancy in the absence of access to abortion, for example, miscarriage may be a positive thing for the woman who experiences it. There are probably even women and couples for whom miscarriage is simply confusing, with no emotional or moral content beyond this confusion. And even if we suppose that the loss of a foetus is not a proper cause for grief, we can still say that it can be a scuppering of hopes and dreams; or a relief. But given that many women and couples seem to experience grief, conceding that the loss of the foetus is not a proper cause for grief is not something we ought to do lightly. I follow Nussbaum (2001) in understanding emotions as evaluative rather than simply “nonreasoning movements.” When one experiences an emotion like grief, that emotion has cognitive content, and the content is evaluative: it is a judgment that the world appears to me a certain way; that I endorse this appearance; and that this appearance has a particular sort of importance to me. Grief, on Nussbaum's account, is the judgment that someone very important to me is gone.24 If the foetus is not morally considerable—if it is wholly outside the sphere of moral concern; if its wellbeing does not and cannot matter morally—then it is unclear how the foetus can be someone very important. A thing that does not and cannot matter morally cannot matter in any way significant enough to warrant such a judgment as grief. In this case, if the foetus is not morally considerable, we are forced to say that those who suffer grief following miscarriage are mistaken in feeling bereaved; and this is quite a thing to say. A wind may hit against something, a current in the blood may pound against something: but they are not in the same way about the things they strike in their way. My fear's very identity as fear depends on its having some such object: take that away and it becomes a mere trembling or heart-leaping. The identity of the wind as wind does not in the same way depend on any particular object against which it may pound.26 The object of an emotion is furthermore intentional, “that is, it figures in the emotion as it is seen or interpreted.” Different emotional states are differentiated, then, by their object, and by the way the object is seen: fear is an apprehension of an object as threatening; hope an apprehension of an object's being desirable and possible; and so on. These apprehensions, according to Nussbaum, are not instances of passive seeing; but of something like judging or believing. It is necessary to understand emotions in this way to understand them as differentiable: as distinct tokens and types; as fear of a dog, or hope for the future, or love of springtime; rather than simply a series of temporally located flutterings of the stomach. On this account, grief is the apprehension of someone as beloved, and the belief that that someone is lost. Writing about the death of her mother, Nussbaum writes that “internal to the grief must be the perception of the beloved object and of her importance; the grief itself must quantify the richness of the love between us, its centrality to my life.”27 The judgment of the beloved as valuable, and the belief that she is gone just is the grief. The “nail in the stomach,” as Nussbaum describes it—the physical sensation of the grief—is a physical reaction to this emotion, this cognitive content, but is not the emotion itself. For this reason, Chrysippus plausibly said that grief (along with other emotions) contains not only the judgment that an important part of my life has gone, but that it is right to be upset about that: it makes a truth-claim about its own evaluations. It asserts the real value of the object, it says that getting upset is a response to something really important, not just a whim. Emotions can be true or false in that sense too.28 Nussbaum is careful to be clear that the issue of whether an emotion is false in this way should not be confused with the question of whether the emotion is sincere. In the same spirit, we are not forced to say that the woman who grieves a moral-status lacking foetus is insincere in her grief, but we are forced to say that her grief is mistaken, that it is a sort of false belief. That the person-denying argument does not imply that women or couples who suffer grief after miscarriage are insincere seems cold comfort. There is still something troubling about the claim that grief following miscarriage is wrong. One might, though, wonder whether the move from lacking moral value to lacking value, full stop, is too quick. Perhaps we can still make sense of the value ascription in grief even if we concede that the foetus lacks moral status. After all, we might think that the value ascription in grief is importantly the ascription of value for the bereaved. In other words, when I feel grief I feel the loss of someone important to me more so than someone intrinsically important. But it does not seem that this move helps. What sense can we make of the foetus itself being valuable to the person or couple that grieves without being intrinsically valuable? It can't be the case that the foetus is valuable to them in the way that a loved one is, since they can have had only very limited contact with the foetus. Loved ones are typically valuable to us because we share memories, projects, activities, cherished interactions, and so on with them; and this is not (clearly) so with a foetus.29 More plausibly, the foetus might be valuable to them because it is valuable to their cherished projects or preferences. In particular, the foetus is integral to their procreative aims. It is valuable to them because having a child is an important desire of theirs. And this does seem to be the way that some women and couples experience miscarriage—as a scuppering of their desire to become parents. However, this explanation does not resolve the worry over the mistakenness of grief in miscarriage either. If the foetus is merely of instrumental value to the woman or couple, then grief still seems mistaken, since merely instrumentally valuable things are replaceable. Sadness or frustration at the temporary lack of procreative fulfilment might be called for, but not grief. Most women who miscarry, after all, go on to fall pregnant again.30 Because of this, miscarriage is not the loss of a thing instrumentally valuable to procreative fulfilment, full stop, for most women; it is simply the temporary lack of such a thing. So, even if the foetus is valuable to the woman or couple qua instrument of aim-fulfilment, this does not seem to make grief appropriate. So, we are still stuck saying that women and couples who do experience grief are mistaken. We might, here, be tempted to say something like the following: grief is very much like depression. The women and couples who report an experience of grief following miscarriage are simply using the word “grief” rather than “depression” to emphasize the severity of their negative feelings. Therefore, it needn't be the case that the person-denying argument denies the experiences of these women/couples; there is simply a linguistic disagreement in play. However, much of the empirical evidence on responses to miscarriage measures both depression and grief, and the figures tend to be different for the two. Further, different outcomes have been observed in the weeks and months following miscarriage for women whose grief scores but not depression scores are significant shortly after miscarriage on the one hand, and those who are depressed but not bereaved, on the other. Most tellingly, women who score highly in measures of depression tend to have worse mental and physical health at nine and twelve months than do women who suffer grief.31 That is, the bad emotional state of women showing signs of “depression” is more strongly bad than the bad emotional state of women suffering “grief,” at least in the medium term. So, the evidence does not seem to speak in favor of the claim that “grief” in this context simply means severe depression. The evidence seems to indicate that the experience is different in kind. Again, it is probably true that for some women and couples, miscarriage simply represents a frustration of procreative aims; a reason for sadness, or anger, but not grief. However, if we concede that the foetus is out of the sphere of moral concern, it seems we are forced to say that the experience should strike all women and couples this way, rather than as a cause for grief. We are stuck saying that those women and couples who feel grief are wrong to feel the way they feel. At this point, one might worry that my analysis “cuts both ways”: that if the person-denying argument belies grief reactions, then the rejection of this same argument belies the reactions of women and couples who do not grieve their miscarriage. As was noted earlier, not all women and couples experience grief following miscarriage; one might think that if we suppose that the foetus is morally considerable, we then will be forced to say that the non-grievers are mistaken on this analysis. But this is surely not so. I do not grieve the deaths of distant others. And this is not because I judge the distant others to be without value. It is because the distant others are not valuable to me. So, while I recognize that their deaths are a misfortune, I do not experience grief. Again, emotions have cognitive and evaluative content: the world appears to me a certain way, I endorse this appearance, and this appearance has a particular sort of importance to me. Furthermore, grief entails both a judgment about the object in itself, and a self-referential element: a judgment about the object's relation to me—this being not only matters, but matters to me.32 Person-denying is only compatible with non-grief: the foetus does not appear valuable (and thus cannot be valuable to me); I endorse this appearance; and this appearance is significant to me in that the death of the foetus is not thereby a cause for grief. On the other hand, person-affirming is compatible with either reaction, since person-affirming is compatible with both the judgment that the foetus is simply a morally valuable being, though not particularly valuable to me; and the judgement that the foetus is both valuable and valuable to me. Lack of grief following miscarriage, then, is perfectly compatible with either stance on personhood. Rejecting the person-denying argument, then, does not fail to take seriously the emotional experiences of women and couples who do not grieve. On the other hand, the person-denying argument bars us from taking grief seriously. In the next two sections, I will discuss two variants on the person-denying argument—Elizabeth Harman's and Mary Anne Warren's—and argue that neither can dissolve the worry over grief in miscarriage. Both Warren and Harman offer what we might call pluralist accounts of moral status, on which different tokens of the same type of entity can differ with respect to moral status, and both accounts promise to resolve the tension between the person-denying argument and grief over miscarriage. I argue, however, that neither succeeds. In the final section, I briefly consider more generally two-tiered accounts of foetal personhood, on which younger foetuses lack, but older foetuses have moral status. Human foetuses are what are often called in the literature “marginal humans.” That is, they are human beings, but are not (or not obviously) persons, where “person” here picks out (roughly) a rational moral agent.33 Marginal humans are notoriously difficult for normative theories to cope with, since they seem at once “one of us” and lacking in full moral considerability on most of the standard accounts of moral considerability. Sentient non-persons (e.g., non-human animals, foetuses of advanced gestational age, and so on) more generally have a very tricky moral character: they are sometimes objects of love, and at other times, for lack of a better term, killable. (Birds are an excellent case in point: sometimes they are beloved pets, and sometimes they are Christmas dinner.) This feature seems to be in evidence in the case of foetuses: many of us think both that miscarriage is (or can be) a grievous loss, and that abortion is morally permissible. The trouble with person-denying arguments for the permissibility of abortion (at least, in their strong form) is that they fail to take account of this moral shape-shifting. They give heft to the idea that abortion is permissible, but just don't gel with the intuition that miscarriage is a grievous loss. One might, then, want to turn to a relational account of moral considerability. Relational accounts explicitly attempt to take this sort of shape-shifting on board by attributing moral salience to extrinsic qualities like being a party to a love or concern relationship.34 Relational accounts are usually pluralist accounts: while relationships are status-conferring on such accounts, so is personhood, and so might be sentience, and so on. On such an account, one and the same creature might be morally nonconsiderable on intrinsic grounds, yet fully morally considerable in virtue of being implicated in relationships of care. In this section, I explore whether a modified version of Mary Anne Warren's relational account of moral considerability can successfully resolve the tension between the person-denying argument and grief following miscarriage. I will argue that it cannot. The infant at birth enters the human social world, where, if it lives, it becomes involved in social relationships with others, of kinds that can only be dimly foreshadowed before birth. It begins to be known and cared for, not just as a potential member of the family or community, but as a socially-present and responsive individual. Thus, although the human newborn may have no intrinsic properties that can ground a moral right to life stronger than that of a foetus just before birth, its emergence into the social world makes it appropriate to treat it as if it had such a stronger right.37 So, according to Warren, what distinguishes a full-term foetus from a newborn, morally speaking, is that the newborn is “known and cared-for,” and is “socially present.” Being so makes it fully morally considerable: gives it a right to life. One sticking point with this defense of the moral significance of birth is that foetuses seem likewise to be “known and cared for,” and in some ways just as “socially present” as newborns. After all, we see them in sonogram images; we feel them kick; we might even caress them through the uterine wall.38 While this causes a problem for Warren's account qua account of the moral significance of birth (since the moral difference between foetus and newborn will dissolve), it might be a way to avoid the unintuitive consequences of the person-denying argument. If loving and caring for a foetus can make it fully morally considerable where otherwise it would not be, then we might be able to say both that the person-denying argument is sound and that grief following miscarriage can be apt. We would need to modify it still further, since very often miscarriage occurs before the time of quickening; before the foetus is big enough to feel it kick. But this seems easily enough done: seeing it and loving it, singing to it, and so on, might be thought to be sufficient for status-con

Ethics and Legal Issues in Pediatric Healthcare · Grief, Bereavement, and Mental Health · Reproductive Health and Technologies

• Your Mother Should Know

  Open Access•Fiona Woollard•Pacific philosophical quarterly•2022

  Add to list

• It’s Complicated

  Open Access•K Lindsey Chambers•Canadian Journal of Philosophy•2020

  Add to list

• Procreation is intrinsically valuable because it is person producing

  Marcus William Hunt•South African Journal of Philosophy•2022

  Add to list