Solving the Puzzle of the Moral Status of the Embryo and Fetus

In March 2006, 21 yo Cleveland man Christopher Challancin was driving home from a party with his 17 yo girlfriend, Jessica Karos. She was 4 months pregnant. They began to argue about her ability to care for their child. Challancin, who had been drinking, became angry. He began to weave high speed through traffic and crashed. Karos was left paralysed.  The baby died. Challancin was unhurt. Because he killed the baby, he was charged with homicide and sentenced to five years.

In 2005, Alison Miller and Todd Parrish sued their fertility clinic in Chicago. They had been having IVF treatment back in 2002 and stored 9 embryos. One of these was “mistakenly” discarded. The clinic apologised and offered the couple a free cycle of IVF. They sued for the “wrongful death” of their embryo.

Every year, about 100 000 fetuses are aborted. No one is charged over these deaths. Thousands of embryos are also destroyed. The law on IVF in England and Australia requires their destruction after a period of time, 5 to 10 years.

How can killing a fetus at once be homicide and yet no crime at all? How can the destruction of embryos be required by law and widely practised but also, in some places, the crime of wrongful death? How can one act – killing early human life – be both right and wrong? This is the puzzle of social practice involving early human life.

One solution has been proposed by the Christian Right, the Catholic Church and “pro-life” movements. That solution is to give the embryo, from the moment of creation, a full right to life.

That strategy certainly resolves the conflict. Killing embryos and fetuses is always wrong. But it leaves us with no abortion (even after rape or when the woman’s life is at stake), no effective contraception (the commonest effective methods – IUD and pill – destroy embryos), no IVF and no effective control over our own reproduction. Many conservative religious and political leaders joyfully embrace these consequences, and seek to impose their values on society, because they are convinced they are right. This is the sort of disrespect of liberty and intolerance of which we so righteously accuse countries like Iran.

The kinds of Christian values which claim that the embryo has a full right to life account poorly for life in civilized western liberal societies and conflict with accepted practices, regardless of whether a few good men disagree.

There are other values which can account for our polar opposite moral norms, attitudes, practices and laws. This is a value to controlling our reproduction, in deciding how many children we will have and when to have them. “Go forth and multiply” – but there is a limit. Early human life has value when it is a part of plan to have a child. The reason why Challancin was wrong to kill his girlfriend’s baby was because she wanted to have that baby. Challancin is more like a drunk driver who recklessly kills an innocent child than a doctor who performs an abortion. Destruction of embryos is a moral crime when parents wanted them. It should have been Miller and Parrish who decided the fate of their embryos, not the Chicago clinic.

Here is the solution to the puzzle of our conflicting attitudes: embryos have special moral value when they are part of a plan to have a child, or at least desired by the people who made them. Embryos do not have special moral value when they are not desired by the people who formed them.

This is the only account of moral status – conditional moral status – that consistently accounts for accepted practices and laws around early human life.

Such a position has important implications for science. Creating embryos for research, either by cloning or by IVF, does not destroy any embryo that is a part of anyone’s plan to have a family. It does not deny the world of a child that would otherwise have existed. It is morally equivalent to engaging in sex using contraception. Both create and destroy embryos, the difference being research is to save lives, but sex is just for fun.

Opposing embryo research represents a backdoor assault on hard won reproductive liberty. It holds embryos as sacred and commits us to a world of vast overpopulation and unbearable family size. Women should not be compelled to bear 10 children or be abstinent.

The two missing pieces in the puzzle of early human life are the value of reproductive liberty and the conditional moral status of early life. Once we solve the puzzle, rational opposition to creating embryos for research melts away.

See more on these issues:

Nazi Eugenics Returns to Germany: The Paradox of Eugenics

Can Liberals Support a Ban on Sex Selection?

Julian Savulescu and Ingmar Persson, Actualizable Potential, Reproduction, and Embryo Research: Bringing Embryos into Existence for Different Purposes or Not at All Cambridge Quarterly of Healthcare Ethics (2010), 19: 51-60

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20 Responses to Solving the Puzzle of the Moral Status of the Embryo and Fetus

  • Peter Wicks says:

    Interesting perspective, but I don't buy the idea that an embryo's right to life depends on the parents' wishes. I can buy the idea that it's morally wrong to kill an embryo when to do so is against the wishes of it's parents but not when it isn't, but the surely we are talking about the rights of the parents, not of the embryo itself.

    I also question the apparent assumption that the purpose of a "value" is to account for current practice and attitudes. We may be comfortable with current practice and wish to find some kind of coherent (ex-post) justification for it, but this is essentially a way of defending the status quo. Do we really want to be that conservative?

  • Matt Sharp says:

    I can accept that the moral status of the embryo can depend on the parents wishes. Similarly, the moral status of a piece of art may depend on the owner or creator's wishes.

    But this doesn't resolve the issue of what crime is being committed if one destroys a wanted embryo, or if one destroys a wanted piece of art. What value is being assigned to both? Should there be a difference, as above, in the punishment for killing a 4 month old fetus and killing an IVF embryo, and destroying a piece of art?

    Julian, is there any point in pre-birth development beyond which you believe the fetus should gain its own rights?

  • Anthony Drinkwater says:

    Let us assume that human reproduction worked as follows : a woman produces eggs which she then expels from her body and stocks in her home. They can then be fertilised by a man and stocked in a home incubator until hatched .
    What moral judgements will we form in the following cases ?
    1. unfertilised eggs are destoyed/lost/damaged by someone – the woman herself or a third party.
    2. fertilised eggs are destoyed/lost/damaged by someone – the woman herself or a third party.

    (there are dozens of variants that could form dozens of other thought experiments to consider as well, but let’s start off simply…)

    To take the first case : would we argue that that there was any difference from any other case of destroying/losing/damaging the property of the woman concerned ? Hard to see what claims could justify a difference, apart from the fundamentalist Christian Right, the Catholic Church and other “pro-life” movements that Dr Savulescu mentions.

    So what is different in the second case ?
    Clearly, the difference is that the egg has been fertilised, which has two possible implications :
    1. that the man concerned could be considered to have a stake in the egg. The extent of this stake would depend, I guess, on the contract (explicit or implicit) between him and the woman. If the man breaks into her home and fertilises (whether deliberately or accidentally) the egg, I think most would argue that the choice to destroy the egg is hers alone – there is clearly no agreed contract. At the other extreme, a joint decision to fertilise an egg with the intention of hatching it into an infant implies that a subsequent decision to abort the plan should be a joint one. Thus, neither of the adults has the right to destroy the egg unilaterally – right viv-à-vis the other, not vis-à-vis the egg. There are other possible scenarios, but in all of them, we are still talking about the rights of the adults and not the egg, even though it is fertilised.
    Thus if the egg is destroyed in a road accident or in a clinic, as described in the two cases of the post, it seems that homicide or accidental death charges are inappropriate – it is one or both of the adults who are harmed. And if the fertilised egg is given to researchers, it is equally the decision of the adults.

    Which brings us to the second possible implication :
    2. That the egg has, once fertilised, a special independent status. One of the difficulties with this notion is that the special status, being conferred merely by the act of fertilisation, takes effect immediately – it is hard to see how this status could be gradually acquired. The adults concerned would thus have a duty of care from the moment of fertilisation. The implications are that these adults no longer have a choice.
    I won’t rehearse here all the arguments for or against this notion. But I note that in practice, very few people accept the special status from the moment of fertilisation – as Dr Savulescu points out, this would rule out many methods of contraception. So if they oppose abortion or embryo research there is clearly another argument somewhere. I would ask them to use the thought experiment to try to clarify this argument : what happens in the incubator that at one point or another gives the fertilised egg its special status ?

    I’m inclined thus to agree with Dr Savulescu that the desire of the adults concerned is the real reason for giving special moral status to some embryos.

  • Peter Wicks says:

    Anthony, I agree that the desire of the adults concerned is *one* of the factors determining whether embryos are given "special moral status", but I also think that two caveats need to be added: firstly that there are others, and secondly that "giving moral status" is not very well defined outside the confines of philosophical discourse: do we mean in practice, in law, or in relation to the rhetoric used to justify decisions of law and/or practice?

    With regard to the first caveat, it seems clear to me that people generally feel differently about the destruction of a late-term embryo and a newly-fertilized egg, even though there is no immediately obvious developmental dividing line between the two. Suspicion of new technology is also a factor, and not a wholly unreasonable one.

    One could look at it like this. Most people exist in a kind of quantum superposition (I'm being a bit flippant with my terminology here, but bear with me) between regarding embryos as persons with rights and as disposable pre-humans with no rights. Pursuing the quantum analogy further, The need to come to a decision in individual cases acts rather like a "measurement", and depending on which decision is made it will be justified in terms of the former position or the latter position.

    So for example in the drunk driver case we are sickened by the behaviour of the driver, so the embryo has "rights". The couple outraged at the negligence of the fertility clinic similarly accords "rights" to their embryo. (Remember also that people always value what they have lost disproportionately highly.) By contrast, those motivated to have, perform or otherwise condone abortions comfort themselves by taking the "no-rights" position.

    What people will not do, in my opinion, is to explicitly accept the notion that the "moral status" of an embryo depends on the wishes of the adults concerned. This being the case, it seems unlikely that promoting such a notion will make opposition (rational or otherwise) to embryo research "melt away". Emphasizing the societal benefits of such research *will* reduce opposition, but it will do so by nudging people towards a "no-rights" position towards embryos, and perhaps by extension newborn babies or even other humans generally. We need to consider the implications of this, bearing in mind that most people are less interested in the logical niceties than we are.

  • Peter Wicks says:

    By the way, Anthony's reference to art has reminded me of the destruction of the Buddhas in Afghanistan by the Taliban. The creators of the works in question were long since dead, and it was not their descendants who were upset, so it wasn't an issue about ownership. It was a sense that something of intrinsic value had been lost. What nobody suggested, however, was that the Buddhas themselves had rights. The same cannot be said about embryos.

  • Matt Baum says:

    In some ways, this discussion reminds me of the history of the evolution of moral status for animals, namely in regards to the claim that the wrongness of the act is dependent on the attitude of the parents (again, the fetus as fox phenomenon):

    In the 1790's it was common place for butchers to sell the shepherd's sheep at the market*. The sheep stood behind the butchers stall until one was sold, at which time it was killed and packaged. The unsold sheep at the end of the day were returned to the shepherd. One day, angry at how the sheep were wandering wantonly about, a butcher cut off all the sheeps' feet so that they would stay still. Rightly, the shepherd was outraged. Setting a precedent, the court convicted the butcher. But the response was similar to Matt Sharp's piece of art example: the conviction was based on the rights of the shepherd and damage to his property.

    This was followed in 1822 with martin's Act, which made it a criminal "offense to wantonly abuse, beat, or ill-treat or ill-treat any animal the PROPERTY of any other person or persons." Again, the rights of the person determined the wrongness of the action (and thus their attitudes, for they could choose not to prosecute). Note also that this law permitted the anything to be done to the person's own animal. It wasn’t until 1835 that this property clause was removed.

    One of the driving forces in this story was Jeremy Bentham, who argued a principle for animal treatment that I believe is relevant here as well: "the question is not – can’t they reason? Nor can they talk? But can they suffer?"

    To try a response to Anthony's question, what happens in the incubator is that at some point develops the capacity to suffer. Before that point, such as charges for the "wrongful death of an embryo" seem nothing more than personification as a byproduct of attachment; similarly, if I was desperately attached to my teddy and you threw him in the garbage, I might shout: "murderer!" Of course this would still be wrong because it was my teddy and I wanted it.

    If the moral status of an embryo depends on its ability to suffer, it is largely an empirical question. Intriguingly, if the capacity to suffer develops in a gradient fashion (as the pain circuitry emerges roughly and becomes more refined), then it might allow for a time-dependent gradient in the wrongness of destruction.

    *I am indebted to Peter Nowlan and his LAST-Ireland course for this history and Bentham quotation

    • Matt Sharp says:

      An entity that has the capacity to suffer is presumably worthy of consideration of having a right not to have *suffering* deliberately inflicted upon it. But does that mean it has the right *not to be killed*?

  • Dennis Tuchler says:

    Assume that a fertilized ovum has full human rights, including the right to life. But the mother has rights, too, including the right to life and perhaps some rights to the use of her body. Overarching (or, perhaps underlying) these (competing) claims of right is the basis for allocating them — some general interest in maintaining a particular kind of social system in which individual life is important and therefore can be violated only for particular and pressing reasons (war, prevention of particularly heinous conduct, etc.). There is another interest that is important to our social system — an interest in protecting the bodily integrity of each individual. This, as well as the interest in preserving life, is reflected in our criminal law and in our laws relating to personal injury. These laws reflect social acceptance of powerful but limited protection of such claims of right, and a necessity to compromise when those claims conflict. This compromise is done piecemeal and often clumsily. It's probably the only way it can be done.

    This means that the acceptance that particular rights reside in particular persons solves nothing when a claim arising under each of these rights conflicts with a claim arising under another of them.

    One standard for resolving conflicts is by defining "personhood" in terms of recognizable humanness. A dividing ovum, by this approach, would have lower status than a recognizably human fetus, and a viable fetus would have the status of any ordinary human being. Notice, I have said nothing about sensitivity to stimiuli, or the ability tyo respond to stimuli. All that's left, I think is to ask about the mother's claim against a viable fetus when her life is seriously threattened by giving birth. This resolves into two questions: May the mother seek the destruction of innocent life to save her own? If she may only because we can't prevent her from doing the natural thing and seeking to prevent her death, then the second problem arises: May a physician, whose life is not put in danger by the birth, assist the mother in killing the fetus?

    I suppose that even an excuse (as opposed to a justification) is enough to allow a physician to help a person do what the person may do herself. But, that's also debatable.

  • SimonM says:

    As Peter Wicks knows I am actually interested in other subjects so when I spot something on our ontology I’ll gladly add my 2cents worth. So again I’ll throw my hat in and see if any one responds.

    BTW hello Peter :) I’ll send that info superorganisms soon.

    Ok let’s first address Julian’s straw man.

    “But it leaves us with no abortion (even after rape or when the woman’s life is at stake)” Wrong, this is contested within the broad Pro-Life and associated movements .

    “ no effective contraception (the commonest effective methods – IUD and pill – destroy embryos)” Wrong, while some would be prohibited others aren’t. As above this is contested.

    “no IVF and no effective control over our own reproduction. Yes and No. Yes no IVF, but no, we still have a choice as to whether we reproduce. I would also point out progressive anti-abortions are quite pro-sex with responsibility so no abstinence monster there.

    So how are we get an informed debate going when even some Pro's are still throwing around straw men willy nilly?

    Anyway I’m always amazed that professional philosophers when talking about gradualist and the “conditional moral status of early life”, aren’t prepared to acknowledge the optionality of this approach and that if consistent ,would also make infanticide a perfectly consistent application of these rules.

    Keli Lane is a woman in Australia who was recently sentenced for murdering her baby daughter so she could continue he sporting career.

    Given that it wasn’t a person and it was her preference –she decided not to give it moral value- and if it was done humanely what has she done wrong?

  • Peter Wicks says:

    I quite like Dennis's suggestion to use "recognizable humanness" as a possible approach to defining "personhood". Of course there is plenty there to object to, not least that it is clearly "speciesist", but I think it touches on an important driver for our intuitions on these issues, and thus deserves to be taken seriously even if we finally reject it.

    I think my own view on this is that recognizable humanness is a relevant, but rather minor, consideration in determining what kind of "rights" we attribute to pre- (and post-) birth human life. As always I'm coming at this from an essentially utilitarian perspective, and in this context I broadly support Dennis's comments about the need for "a social system in which individual life is [seen as] important and therefore can be violated only for particular pressing and particular reasons", and that this needs to form at least part of our basis for sorting out competing "rights"-based claims.

    A related point is that, unlike the US constitution, I personally don't regard rights as being "inalienable". I regard them as being a matter of decision: something that we decide to accord to ourselves and others. At the same time I'm curious, even if sceptical, about Simon's and others' attempts to derive them objectively from ontological or other considerations.

    • Dennis Tuchler says:

      Peter: as to your last pargraph. I think inalienability is sort of like duty-to-oneself, which cannot be forgiven. It seems to be a kind of right that is critical to the foundation of a free society. Compare the argument about whether you can sell yourself into slavery (distinguishable from being forced into slavery to settle debts). There is even a kind of nudge in "inalienability"toward a duty to insist on such rights, in appropriate form. This has to be a moral duty, since it wouldn't work as a legal one.

  • Marco Antônio Oliveira de Azevedo says:

    On the conditional moral status of early life: some thoughts. Joel Feinberg, in a well-known paper on animal rights, said that “if we hold not only that we ought to treat animals humanely but also that we should do so for the animal's own sake, that such treatment is something we owe animals as their due, something that can be claimed for them, something the withholding of which would be an injustice and a wrong, and not merely a cause of damage, then it follows that we do ascribe rights to animals”. In contrast, “a mere thing, however valuable to others, has no good of its own”. Here I strongly agree with Feinberg and I think it can be easily applied also to human embryos and all products of conception. But Julian Savulescu presents a subtle different view concerning embryos: the view “that embryos have special moral value when they are part of a plan to have a child, or at least desired by the people who made them” – the CONDITIONAL MORAL STATUS VIEW. The view, regarding Julian, is different from Feinberg’s not only because embryos can have moral value if they are valuable to a couple – expressed in this case by the fact that this embryo is part of the couple’s plan of having a child. It is very different because Julian agrees that the same embryo can be a simple “thing” or “a valuable entity” depending on the interests and choices of the couple, and that the couple can then create, by their joined decision, an entity with a Feinbergian “value of its own”, represented for example in some especial rights. Consequently, the couple by their decision can transform a thing with no good in its own in an entity with some claims against others – claims to actions or omissions in her own sake. I interpret Julian’s view as the assertion that, in the case of embryos (“early life”), couples have the power of creating values and claims not only for their own benefit but also for the embryo’s actual and/or future own interests. The conditional moral status view is that embryos can only obtain moral status depending on the couple choices. I agree that “this is the only account of moral status – conditional moral status – that consistently accounts for accepted practices and laws around early human life”, but I amend that this is the same general account on the possible moral status concerning other beings, like animals. Following this approach, we have two different kinds of beings endowed with moral values (intrinsic moral values or beings with moral goods in their own, or goods and benefits in the interests of their own well-being): first, all born human beings, whose values do not depend on the beliefs, values or choices of other persons; second, animals, human embryos and fetuses, whose values depend CONDITIONALLY on choices or decisions of people with some value in itself (that is, the only kind of beings with the powers of creating values, even if created by representation). If we accept this division, we must accept that the fact of birth makes a very big difference, that is, the fact of birth creates the (social?) existence of a living creature with powers and capacities of creating values (that is, with rights in its full moral and legal status), independently on the decisions or interests of the woman or the couple. It is very consistent with our legal practices, for, after the birth, the woman or the parents cannot change their mind anymore. Nevertheless, before the birth, especially a long time before, the woman can change her decisions concerning, for example, her in vitro embryos, or (in situations where abortions are permitted) change her mind concerning her pregnancy. She can (or the couple in the case of in vitro embryos) decide at one time discard the embryos, at another to use them or freeze them, and she can change her mind freely. This is not possible after birth. Hence, after birth, the woman (or the couple) loses her powers concerning the life of her conceptus. This is rather mysterious: why should birth have this very special power, since it is not properly an act of a human being endowed of legal or moral powers? It is only a natural event.

    • SimonM says:

      It would appear that it isn't really birth that makes social valuing possible as we have child destruction laws and women mourning miscarriages. So we seem to have a combination of wanting/giving value from the start of conception –after all child destruction laws would kick in then- and growing social bond through a longer acquaintance. But as the post partum orphan human shows, lack of relational value isn’t seen as a green light to kill it. Ok make it a non person orphan human in a situation where no one wants the child. What then saves it life?

      I just wonder whether Julian and Peter Singer et al are at all consistent with their views; if they can argue for the utility of embryonic stem cells combined with relational values, why can’t the parents give up a baby or non person infant they don’t want for organ use and experimentation if the procedures are done humanely? As I’ve pointed out to Peter the lives that would be saved would be many including other cognitively superior animals.
      Julian? Anyone?

      • Dennis Tuchler says:

        Saving others' lives cannot be relevant to the initial concern — the moral status of the fertilized ovum. If the fertilized ovum has a claim as powerful a born person to the protection of its (his,her) life then the fertilized ovum's life cannot be taken to benefit another person.

        On the other hand, if you take my distinction on the basis of recognizability, the only person who counts is the person carrying the fertyilized ovum.

        • SimonM says:

          Dennis true, but it is still trotted out as one of the reasons -combined with personhood status or lack of- why embryos can be 'chopped' up. But then under these arguments -including Singer's – the same argument can be made for the use of babies and infants .

          Now regarding looking human if I were to take an overview of the reasons why many philosophers wouldn't consider looking like a human makes any difference, is because it has no underying argument why looking like a human matters morally. A brain dead human looks like a human and many things like it wouldn't cut it. Also say we had an alien person in a form that didn't look human, would you then justifying cutting it up because of this?

          It may be a reason some people feel they can start giving moral reason purely on an emotional appeal, but that's about it.

          • Dennis Tuchler says:

            The reason that "looking like" which includes "acting like" (e.g. kicking in utero) makes a difference is that it produces the ethical situation most poignantly — the situation in which the pregnant person must recognize what she is doing. Before, it is simply a hypothetical matter. No one really relates to a blob of dividing cells except some zealot who is in love with ideology.

            Of course, recognizable humans die. A dead human is generally recognized as no longer a "person". What's that? Why, a social construct with which we clothe a human thing and make it entitled to respect as a human. The point at which that personhood is conferred is that point at and after which it is dangerous to the ideas that undergird a free society to deny respect to that human being (being=thing).

            An alien human-like thing and a human-like robot raise a serious problem. We know that the former is not human and the latter is neither human nor alive (as we understand life). But, see Isaac Azimov's story, 20th Century Man. I think that recognition is the morally/ethically significant point at which we are called upon to confer respect. Consider killing what looks like a human being and discovering it was an alien who lived and looked like a human. Should that act be punished by the criminal law? I think it should, because my understanding of the purpose of criminal sanctions is deterrence — both negative (in the sense of strengthening the avoidance reaction) and positive (in the sense of strengthening the duty to respect through social affirmance of that duty upon the body or treasure of the malefactor). Similarly with robots that look human. Compare the social function of animal cruelty laws.

          • SimonM says:

            Dennis I hardly see how 'acting like' means anything unless what you are really using is a functionalist account based on personhood and its sophisticated desire to exist. Many animals share many biological capacities that we do but that doesn't seem to count.

            BTW I'm a strong atheist and being an anti-abortionist has nothing to do with religious 'baggage' rather a consistent application of the rules that even Pro-Choicers use. & I tend to argue agaist both sides.

            I'm certainly not going to make the sort of simple mistake based on the appearance that excluded some humans from moral in-group inclusion in the past.

            Again I would ask why shouldn't we use unwanted babies as body banks as having a humanoid appearance isn't morally relevant.

  • Peter Wicks says:

    Dennis, regarding "inalienability": yes if that's what it means I would agree, but is it really what the authors of the constitution intended? I somehow have the impression that they had in mind something stronger, a kind of moral realism which I don't espouse.

    In relation to your replies to Simon, on the whole I think your view on these matters is quite similar to mine, but with the difference that I do accept what Simon calls the "optionality" of this position. By contrast you seem to take it as given ("self-evident"?) that our moral positions must serve the purpose of "undergirding a free society", whereas for me this is a choice rather than a truth.

    (By the way over Christmas while vacationing in the US I saw Glenn Beck on TV making precisely the point that, according to the constitution, the "self-evident truths" it proclaims are from "God" or "nature" rather than from "men", and commenting that if they come from "men" they can also be taken away. To which I would reply: why can't they be something that we come up with (i.e. decide on) ourselves, collectively and democratically? The trigger for Beck's comments was a democrat in congress saying that US citizens had an "inalienable" right to health care.)

    • Dennis Tuchler says:

      Peter: You objected to my approach to "inalienable rights" by stating: "By contrast you seem to take it as given ("self-evident"?) that our moral positions must serve the purpose of "undergirding a free society", whereas for me this is a choice rather than a truth."

      My idea of rights is that they are not pre-political or universal, but are produced and distributed according to the generally accepted nature of the social system for which they are devised. So, assuming the political system bases its legitimacy on being the government of a free society, then rights would be accepted or "given" which would support, or enforce, or reinforce such a value. If you take the Declaration of Independence free of its references to a diving source of rights, then the relationship between rights and the legitimacy of a political system becomes clear. You can't have a free society without these kinds of rights. So they have to be produced, distributed and considered prior to the formation of the government.

  • Peter Wicks says:

    Thanks for the clarification Dennis, I think I can go along with all of that. My comments were motivated in part by a concern that the references in the Declaration if Independence to a divine source of rights are being taken at face value by influential commentators (such as Beck) on the religious right and used to "rule out of court" any argument that seems to recognize that the Constitution is a human, fallible creation that may, shock, horror, be in need of updating (or at least being interpreted flexibility). I think it's therefore important to be explicit about this, and state clearly where we stand in relation to these issues.

    At the same time, if we indeed take the view that rights are "not pre-political or universal", but rather a precondition for the maintenance of a free society, then the question arises why we necessarily want to maintain a free society. The fact that the current political society bases its legitimacy on this would not in itself be enough to convince me. The face that such a society seems to be most conducive, in the long run, to overall human well-being seems to me a stronger one. But that's me being utilitarian again…

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