A Response to Boonin

Recently we have discussed Boonin's book, In Defense of Abortion, here and here.  Francis Beckwith reviewed the book in an essay entitled Defending Abortion Philosophically:  A Review of David Boonin's A Defense of Abortion, 31 Journal of Medicine and Philosophy 177-203 (2006).  I am posting below the portion of the essay that responds to Boonin's argument that abortion is morally permissable before the fetus acquires organized cortical brain activity.  Patrick Lee and Robert George also address some of Boonin's arguments here.

"B. Various Post-Conception Criteria

Chapter 3 concerns arguments for a human being’s post-conception right to life. Boonin assesses seven criteria: (i) implantation; (ii) external human form; (iii) actual fetal movement; (iv) perceived fetal movement (quickening); (v) initial brain activity; (vi) organized cortical brain activity; and (vii) viability. Unlike in chapter 2, in which Boonin critiques various arguments for the same criterion (conception), in chapter 3 he critiques various arguments for various criteria. As with chapter 2, many of Boonin’s arguments in chapter 3 can be, and ought to be, fully embraced by pro-life advocates.

The most important section of this chapter is the one in which Boo- nm offers his own account of the right to life, arguing that this moral status arises in a human being at the point at which the fetus acquires organized cortical brain activity (25—32 weeks after conception). Boonin’s claim is based on an argument that can be summarized in the following way:

a. Organized cortical brain activity must be present in order for a being to be capable of conscious experience,

b. Prior to having a conscious experience, a being has no desires,

c. Desires (as understood in Boonin’s taxonomy; see below) are necessary in order for a being to have a right to life,

d. The fetus acquires organized cortical brain activity between 25 and 32 weeks gestation,

e. Therefore, the fetus has no right life prior to organized cortical brain activity.

Like other contemporary philosophers,7 Boonin maintains that rights depend on desires. However, because there exist human beings, such as newborns and the temporarily comatose, who do not have present awareness of their desires, and because most people believe that it is obvious that such beings in fact have rights, Boonin is offering a view that attempts both to ground rights in desires and include such beings as newborns and the temporarily comatose as rights-bearers while excluding the fetus during most of its gestation.

In order to defend his view, Boonin reintroduces the reader to distinctions he made earlier in the book in his critique of Don Marquis’ (1998a) future-like-ours argument against abortion (pp. 64—69). Boonin makes a distinction between dispositional and occurrent desires, and between ideal and actual desires. According to Boonin, “a desire of yours is occurrent if it is one you are conspicuously entertaining,” such as your desire to read the rest of this sentence. On other hand, “a desire of yours is dispositional if it is a desire that you do have right now even if you are not thinking about at just this moment,” such as your desire to live a good long life (p.122). Thus, according to Boonin, all things being equal, it seems reasonable to attribute to the temporarily comatose adult certain dispositional desires including a desire to not be killed. So, according to Boonin, it is dispositional desires that ground one’s right to life, for one has a right to life even if one is not presently aware of desiring it.

But what about people who have occurrent and/or dispositional desires for perceived goods that are inconsistent with what they would desire in the future? For example, a person may have the desire to engage in an act that deprives her of life because she is depressed, holds false beliefs, or has acquired incomplete information. In order to address this problem, Boonin introduces a distinction between ideal and actual desires. To employ one of Boonin’s own examples: although you may have an actual occurrent desire to drink a glass of water that you do not know is laced with poison, “we may confidently consider your ideal desire to avoid drinking from the glass, given that your actual (though likely dispositional rather than occurrent) desire not to be killed strongly outweighs your actual (even if occurrent) desire to quench your thirst” (pp. 123—124).

What these distinctions show, according to Boonin, is that Marquis is right that it is wrong to a kill a being that has a future-like-ours, but, contra Marquis who maintains that this occurs very early in pregnancy and perhaps at conception,8 the fetus does not become such a being until it has acquired organized cortical brain activity. Because abortion opponents typically respond to traditional personhood-criteria that exclude fetuses (e.g., rationality, self-consciousness, etc.) by citing counterexamples of beings we know are prima facie wrong to kill even though they lack the present ability to exercise these personhood-criteria (e.g., newborns, toddlers, the temporarily comatose), Boonin’s distinctions are ingenious.

Based on these distinctions, Boonin maintains that newborns, toddlers, and the temporarily comatose have a right to life even if they do not occurrently desire a right to life. For they have an ideal dispositional desire because they possess a particular sort of brain that has had a conscious experience and thus has the potential to desire a right to life. Writes Boonin,

Once an individual does develop such desires, the potential that his brain has for developing further becomes morally relevant: It is because a human infant’s brain has a potential that a mature cow or pig does not have that the human infant uncontroversially has a future-like-ours, whereas the cow or pig does not. And it is because of this that the conscious desire that an infant has provides a solid foundation for attributing to it an ideal dispositional desire that its future-like-ours be preserved, whereas this cannot be said of the conscious desires of the cow or the pig. (p. 126; footnote omitted).

            

Although the distinctions between desires offered by Boonin may be uniquely suited for his conscription of Marquis’ future-like-ours account, they do not seem to be useful in either overcoming the comatose-Bob counterexample I suggested above (whose prior experiences are forever erased) or establishing organized cortical brain activity as the condition that imparts to the human being a right to life. Thus, I believe that premise (3) in Boonin’s argument—desires are necessary in order for a being to have a right to life—is false. I offer two reasons for this: the problem of the indoctrinated slave, and the problem of creating brainless human beings.

1. THE PROBLEM OF THE INDOCTRINATED SLAVE

As Lee (1996) has argued, a person, such as a slave, may be indoctrinated to believe he has no interests, but he still has a prima facie right not to be killed, even if he has no conscious desire for, or interest in, a right to life. Even if the slave is never killed, we would still think that he has been harmed precisely because his desires and interests have been obstructed from coming to fruition (Lee, 1996, pp. 7—31).

Boonin may respond that the slave’s ideal desire is to have a right to life, which is why he suggests it would be wrong to kill a despondent teenager, Hans, who desires to die after his girlfriend broke-up with him (pp. 70—79). But unlike the slave, Hans had a past in which he desired a right to life and thus it would not be unreasonable to suggest that after he recovers from the break-up he will reacquire that desire. The slave, however, did not have a past in which he desired a right to life; and in fact, his indoctrination may make it unlikely that society could rid him of the false beliefs he has about himself. Of course, we want to say that this indoctrination harmed the slave, that in fact he would desire a right to life if not for the intervention of those who indoctrinated him. But that judgment seems to assume that the slave is a being of a certain sort that ought to desire a right to life even though he has never desired it, either occurrently or dispositionally, and that it is unlikely that he will desire it in the future. Yet, a being seems to have been wronged, precisely because he was indoctrinated to believe something false about himself. And if he were killed by his master for sport or some other ignoble reason, we would say that his right to life was violated, even if we discovered later in his diary that he desired to be killed by his master for sport or some other ignoble reason. Therefore, it is not desire, either occurrently or dispositionally, that grounds the right to life, but the nature of the sort of being that will have this desire when it reaches a certain level of maturity and is functioning properly.

Suppose, however, that Boonin replies that the indoctrinated slave story is actually a case in which Boonin would appeal to the slave’s ideal desire as the reason why it would be wrong to indoctrinate and subsequently kill the slave. That is, because the slave has organized cortical brain activity, it is reasonable to conclude that the slave would have desired liberty and a right to life absent the indoctrination.

I do not think that this response adequately addresses the problem. For consider this illustration. Imagine that you own one of these indoctrinated slaves and she is pregnant with a fetus that has not reached the point of organized cortical brain activity. Because you have become convinced that Boonin’s view of desires is correct, and thus you are starting to have doubts about the morality of indoctrinating people with already organized cortical brain activity to become slaves, you hire a scientist who is able to alter the fetus’s brain development in such a way that its organized cortical brain activity prevents the fetus from ever having desires for liberty or a right to life. That is, the organized cortical brain activity arises in this being in such a way that its basic capacities to desire liberty and a right to life, that it possessed from the moment it came into being, can never come to maturity. Yet, it seems that the rights of this fetus have been violated precisely because its acquisition of certain presently exercisable abilities to which it is entitled was intentionally disrupted by an external agent prior to the arising of organized cortical brain activity. But if rights presuppose desires and desires presuppose organized cortical brain activity, then Boonin’s criterion cannot account for the wrong done to the fetus when a scientist changes the developmental trajectory of the fetus’s organized cortical brain activity before it arises.

2. THE PROBLEM OF CREATING BRAINLESS HUMAN BEINGS

Another, though similar, problem with the desire account is its inability to account for the wrongness of purposely creating brainless human beings for an apparent public good. David W. Brock, for example, cites Carol Kahn’s proposal for a possible use of human cloning, in which she suggests that “[aifter cell differentiation, some of the brain cells of the embryo or fetus [clone] would be removed so that it could then be grown as a brain-dead body for spare parts for its earlier twin” (Brock, 1997, p. E8, citing Kahn, 1989, pp. 14—18). According to Brock, “this body clone would be like an anencephalic newborn or presentient fetus, neither of whom arguably can be harmed, because of their lack of capacity for consciousness.” Yet, Brock maintains, “most people would likely find” the practice of purposely creating non- sentient human beings “appalling and immoral, in part because here the cloned later twin’s capacity for conscious life is destroyed solely as a means to benefit another” (Brock, 1997, pp. E8-E9). It is not precisely clear, given the desire account of rights, what would be wrong with cloning brainless human beings for the purpose of harvesting their organs. That is, if there is no injustice done to another and someone receives a benefit, it is difficult to know where exactly the wrong is to be located in the act. I suspect that some would locate it in the moral intuition that the pre-brain embryo is deprived of something to which he is entitled. But if that is the case, then desire (whether occurrent, dispositional, actual or ideal) is a condition that is not necessary in order for a human being to possess both rights and a present capacity to be harmed. Yet, what follows is that the intentional creation of brainless children (or embryos) for the purpose of harvesting their organs is a serious wrong. But if we were to extract from this insight the principle that seems to ground this wrong—it is prima facie wrong to destroy the physical structure necessary for the realization of a human being’s present capacity for the exercisability of a function that is a perfection of its nature—then the pre-brain embryo is a subject of rights even if it has no desires.

Thus, given these two problems, as well as the comatose-Bob counterexample, the prima facie wrongness of killing or damaging another cannot rest on a human being’s occurrent, dispositional, actual or ideal desire not to be killed or damaged. Rather, its wrongness seems to be grounded in that it is a being of a particular sort who is deprived of real goods when it is killed or maimed, and these goods are ones for which its nature is intrinsically directed to achieve for its own perfection. Consequently, organized cortical brain activity fails as a condition that imparts to a human being a right to life."