By Charles Foster
Three years ago Ana Mejia bore a son, Bryan Santana. To her surprise he had no arms and only one leg. I should have been warned about this, she recently told a Florida court. It was negligent not to warn me. Had I been warned, I would have had an abortion. She asked the court for $9 million compensation. The jury gave her $4.5 million.
The disability rights lobby is predictably outraged. Why, they say, should it be presumed (as it clearly is), that a disabled person’s life isn’t worth living?
If that is Ana Mejia’s presumption, then (at least in relation to a child as relatively mildly disabled as Bryan) it is plainly reprehensible. I don’t know her motivation, but I doubt that she saw it that way. Many parents in her situation (and this is a very common issue in medico-legal practice) don’t make their decisions on the basis of their child’s quality of life at all. A much commoner thought is: ‘A disabled child will disrupt my own life. One of the purposes of pre-natal screening is to enable me to decline to bring into the world a child who does not fit with my ideas about how I should be living my life.’ I will call this thought the ‘pre-natal screening default thought’ (PNSD).
There will be few readers of this blog who would say that contraception, motivated by an identical wish to stop a child disrupting one’s life-plan, is wrong. What makes the PNSD different is the existence of the disabled fetus.
Let’s go back to the disability lobby’s objections. Where abortion occurs because of disability in circumstances where the disability cannot seriously be said to make the child’s life not worth living, the lobby claims that abortion indicates an unacceptably discriminatory view of disability. The argument is essentially: ‘You think that there is a place in the world/your world for a ‘normal’ child, but not for a disabled one. That is naked chauvinism.’ Where the disability, though slight, would interfere with the parents’ ‘life plan’, this is a criticism of the PNSD. It might be argued that there is no disability, however slight, that would not interfere with some life-plans (even if the only interference were occasionally monitoring visits to a GP). But this argument sounds thin. There will be some cases of abortion for very slight disability where it is impossible for the parents credibly to plead not guilty to the accusation of simple bigotry of a sort which, if expressed towards a person who is born, could lead to legal sanctions such as summary dismissal from employment.
How, then, should law and morality treat the woman who decides to abort a fractionally less than perfect fetus on purely chauvinistic grounds, but who would have kept a perfect fetus? The traditional arguments for abortion (along the lines of it being impermissible to force a woman to be parasitized for 9 months by a growing tumour, and then hamstrung socially, emotionally, economically and in every other way for the rest of her life), surely falter in such a case. If you want to adopt those arguments there is no way to avoid using corrosively discriminatory language as you utter them. As to the law in the UK: well, until 24 weeks the law will meekly sign your form, asking, in practice, no questions about your motivation. After 24 weeks it might get a bit trickier.
Surely it is intellectually uncomfortable for our notional typical disability rights lobbyist to fail to be an opponent of abortion per se? If it’s wrong to kill a fetus on the grounds that it is very slightly imperfect, how can it be right to kill a ‘perfect’ one? An almost imperceptibly disabled fetus, aborted on the basis of that disability, differs from a ‘normal’ one only in the eyes of the parents, and only by reference to their own life-plan. The only ‘disability’ is the failure of the child to coincide with the views of the parents about the way an acceptable child should be. ‘Disability’, then, is often subjective. Brown hair or female gender are disabilities in the eyes of some. Abortion for either of those characteristics is unacceptable. There are several ways of describing the reasons for the unacceptability. One common way is to use the language of discrimination. But there is another, which elides seamlessly with that use, and comes down to the same thing. If it’s wrong to object to the existence of another human being on the basis of one of her attributes, isn’t it wrong too to say that the attribute of existence is an evil? Insofar as this is an argument against abortion per se, many will simply say: ‘The fetus isn’t a human’. But that, (in the light of the arguments they have relied on in objecting to discrimination) isn’t open to the disability rights people.
Cases of unwanted births used to be very lucrative for UK lawyers. Typically a sterilisation would be done negligently, or there would be a failure to warn about the risk of reversal. Along a child would come. The parents would go to court saying: ‘We did not want this child. She is expensive. We want compensation representing the cost of bringing up the child.’ It was amazing how many of these children were destined, according to the pleadings, for private education and parentally-funded post-graduate glory.
But this market collapsed in the House of Lords in McFarlane v Tayside Health Board [2000] AC 59, where it was said, in effect, that the law should, on public policy grounds, conclusively presume that a child was a blessing. How much of a blessing? Well, one should presume that the financial value of the blessing was greater than or equal to the costs of upkeep. Accordingly there was no claim for these costs (although the pain, suffering and loss of amenity associated with pregnancy and labour did sound in damages).
Later cases (eg Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, and Parkinson v St James’s and Seacroft University Hospital NHS Trust [2001] 3 WLR 376) explored the position further in relation to disabled children. The McFarlane ‘blessing’ principle remains. A disabled child is still a blessing, although the costs of bringing up a disabled child which are over and above those associated with bringing up a normal child may be recovered.
These cases (rightly, I’d say) refuse to draw any distinction between the worthwhileness of a disabled as opposed to an unimpaired life. The principles there would frown at the chauvinism of the hypothetical mother for whom nothing less than fetal perfection will do. But the principles do not sit easily with the UK law of abortion itself. The logic of McFarlane would result in repeal of the Abortion Act and awards of statutory compensation to unhappily pregnant women, equal to the amount given by the courts in failed sterilisation cases, to represent the trauma of pregnancy and labour. So: whether you think that should happen turns on whether, with the House of Lords, you agree that children should be presumed to be a blessing.
"Surely it is intellectually uncomfortable for our notional typical disability rights lobbyist to fail to be an opponent of abortion per se? If it’s wrong to kill a fetus on the grounds that it is very slightly imperfect, how can it be right to kill a ‘perfect’ one?"
Because killing indiscriminately does not suggest that it is the physical characteristic of the fetus that are at fault. Whereas *only* killing slightly imperfect fetuses encourages the disposition to think that disabled people are less valuable than non-disabled people.
Mark. Many thanks.
Yes, that's how the argument would have to be put. But I raised the case of an almost imperceptibly disabled fetus to indicate that there's no real line between abortion for some minor disabilities and abortion for the mere inconvenience of being a life-disrupting human being. I should have spelled this out, and will amend the text.
Pregnancy is one of the many potent challenges for a 21st century woman. Whether being pregnant is a 'blessing' or pain, if a woman decides to have an abortion, the question that needs to be asked is: is it in the best interest of the fetus to exist as a 'challenged' person? Once this question is carefully analyzed from the perspective of the fetus, and not this or that group, the entire issue of abortion will be dealt with from the future quality of life of the fetus. As for the pro and against groups, once the child is born, these groups will abandon the mother, and look for another pregnant mother to make sure their voices are heard. Rights given to woman should be equally applied: regardless of the perfection or imperfection of the fetus, she should be the one to choose. Else, the entire notion of rights simply turn out to be a joke.
Khalid: many thanks.
(a) Surely it makes no metaphysical sense to compare existence with non-existence.
(b) I don't understand how your statement 'regardless of the perfection or imperfection of the fetus, [the mother] should be the one to choose', can be reconciled with your assertion that the only relevant question is whether it is in the best interests of the fetus to exist. A mother may herself decide that she could not live with even a very mildly disabled child, yet that child, if adopted, might have a wonderful life.
(c) It's not accurate to say that the pro-life groups abandon mothers once the child is born. Many are very actively involved in seeking to support mothers, and in arranging adoption.
(d) In this country, at least, there is no shortage of would-be adopters of neonates. And yet abortion is still with us. That is because it is not as simple as you say. Being inhabited by an unwanted organism for 9 months, with emotional turmoil if the child is taken away at birth, are significant challenges for any woman. I don't think that they are challenges that justify the way we typically view abortion here, but they can't be dismissed.
Charles, thanks for your comments.
May be I should have clarified my argument a bit in detail. However, the point I initially intended to make is that when the woman has been given the right to have an abortion, it is her that chooses if it is in the best interest of the child to exist or not. I fully agree with you that probably there are thousands of people ready and willing to adopt neonates, in Europe and in North America – I live in Canada. But my argument is: is it in the best interest of a future person to exist if the fetus is diagnosed with either a genetic disorder or a severe disability? People may very well adopt a neonate, but will the challenged/disabled neonate be able to experience the 'good life?' Will they be able to express their pain and suffering? Will they be able to share their sorrows? Will they be able to complain of their existence? Life as is today, even parents of normal children are so busy that they are unable to spend quality time with their own children. How can we reasonably then say that an adopted child who requires 24/7 care will be given such attention which even a 'normal' child is not getting? Even if the child is being looked after by the state, they remain within the four walls of a given institution where generally paid staff look after them: honestly, do we call this life? These are very hard issues that cannot simply be tackled with a subjective lens. We must look at each and every case in view of the lives of those who were brought into this world despite the fact that the 'world' had foreknowledge of their fetal disabilities. Please do not misunderstand me; I am not in favor of abortion in cases where fetus is 'normal' and 'healthy.' What I am saying is that since we know that the life of a given fetus will be nothing but total dependence, isn't it worth the while to examine the decision from this angle? As for the pro-life or any other such group, their object of concern is the fetus. To them, the woman is simply a container who – regardless of her mental or physical condition – must carry and deliver the child. Once the child is born, attention is taken away from the mother and given to the child. This is because the mother is able to feel the pain and happiness and is able to express it; she can live her life the way she wants to and so forth. But not the neonates: that is the reason more care is given to them than the mother. We may disagree on any point that I have brought into the discussion, but we cannot disregard the alternative view that is it in the best interest of the future person to exist?
if quality time and total dependence are the reasons down syndrome or disabled foetuses should be aborted,then why not stop the poorest people of the world from reproducing. they have neither quality time to spend nor can they provide anything beyond mere survival -all based on total dependence.yet the poorest often breed the most.
there is fundamentally something wrong in the view that perfect parenting is the only reason children should be allowed in.anyone unable to provide quality time or a leg up in life should not procreate? this is absurd
"honestly, do we call this life?" . yes it is life. it is NOT the life you want.but try putting those living there to death. they definitely DONT want to die.
Pravin: many thanks. You point out very powerfully some arguable corollaries of the statement: 'It's not fair to that child to bring it in the world' – a statement commonly and often thoughtlessly used.
Hmm. You raise interesting questions, but I'm not sure that the questions ought to have been raised by this suit. Yes, Bryan's parents said they'd have aborted had they known the extent of their son's disabilities. But it doesn't follow that they (or the jury) ever thought that their son's life wouldn't be worth living; nor that they had PNSD. They may, instead, think something like this: if we had been informed of our son's disabilities, we would have aborted because we would have been so worried that we couldn't afford the things that would be necessary to give a decent life to a child who has no arms and one leg. It's that thought which is most consistent with the suit, the aim of which was explicitly not to recover damages for the parents' pain or suffering (or for the disruption of their life-plan) but to pay for the surgery, wheelchairs, prostheses, physical therapy & attendants that Bryan will need. It's a thought which is consistent with the later cases you mention; and a thought which occurs more urgently to people who live in countries without good insurance schemes. I note, also, that the parents decision to keep and raise Bryan slightly undermines the assumption that they had PNSD.
Stephen: Many thanks. I said in the original post that I did not know what motivated the parents in the Santana case. You are no doubt right to say that some parents in comparable situations might say: 'We'll get an abortion because in the forseeable economic circumstances a child born with this disability is likely to have a life that's not worth living', rather than simply 'A child with these disabilities does not have a life worth living'. In my own highly statistically insignificant, uncontrolled and otherwise unpublishably anecdotal experience of these cases, that's unusual. But I agree that the two points of view are morally very different.
Khalid: Thank you. I entirely agree that a crucial (some would say the crucial) criterion is whether or not it is in the best interests of the child to live. But the mother is not always the best person to make that judgment. It is monstrous, too, to treat the mother as a mere container. And, yes, some of the pro-life groups are guilty of precisely that.
It sounds to me, though, as if you undervalue a truncated, institutionalized, and utterly dependent life.
Thank you Charles: In the west, I don't believe there would be a single 'health-care professional' or even a counselor who will ever make a final judgement on abortion on behalf of the mother. When I say that it's the mother that must decide if it is in the best interest of the fetus to exist, it somehow presupposes that the mother is operating within an organized medicare system. The doctors, the social workers and many such people are at her disposal. The system is designed in such a way that these 'professionals' are capable of detecting if the decision made by the mother is rational. If not, I am quite positive that she will get all the guidance possible to ensure that her decision remains within 'moral bounds.' No system is perfect, and not every mother possesses the capacity to judge and decide. But, then, the system is there to help her. This is the context in which I am advancing my 'best interest' argument.
You say: "It sounds to me, though, as if you undervalue a truncated, institutionalized, and utterly dependent life." When I said: "honestly, do we call this life?" This is in the context of a fetus being diagnosed with a genetic disorder or any form of severe disability: if the future life of dependency, pain and suffering is preventable, why it isn't prevented? Once a child is born with any sort of 'abnormalities," it is the duty of the society and the system to make sure that they are well cared for. No parent or no system can end their life – no infanticide! But, on the other hand, we raise a reasonably healthy child and in the prime of their youth, we march them onto the battlefield where death awaits them – if you wish, I can argue further on this in a later post. Why we don't object to that? What I gather from your thoughts so far is that you prefer your ideas and your views to prevail be it at the price of another being's suffering. Meaning, someone, somewhere within the four walls must suffer so that the world can acknowledge the integrity of your passions. My criticism may seem a bit harsh, but I must also defend my own position that 'is it in the best interest of the fetus to experience a future life of pain and suffering?'
Not to throw more fuel on the fire, but this is the sort of case that Peter Singer would probably point to in defense of infanticide. Here we have parents who would not have wanted the baby had they known the child was disabled. They had the baby, and it was disabled. Instead of paying for the baby's care costs for the rest of its life, and the parents presumably still dissatisfied with the disabled child, euthanizing the child might be the best option all around.
Wayne: thank you. Yes, I expect you're right, and that Peter Singer would find this case very straightforward. But isn't there more to it than he would think there was?
Khalid: thank you.
Re the first point: You have a more rosy view than most about the ability of abortion counsellors to be objective. Most would agree that there's a fair amount of directive counselling (in both directions). This is no doubt often done unconsciously by well-meaning counsellors who believe that they are being objective.
Re your second point: there would be no prospect whatever of a court concluding that it was not in the best interests of an incapacitate adult, physically compromised as Bryan is, to continue to exist. I think that the courts are right about this. But the same reasoning does not apply to a compromised fetus. Should it? Obviously some other maternal factors come strongly into play. But should they be decisive? You say that it is inconsistent not to object to sending our slightly older children into battle. I agree that we should protest much more strongly than we do about the immorality of war, but the two situations are not easily (and I'd said not usefully) comparable.
Re your third point: there may indeed be situations in which it is justifiable to allow the suffering of an individual in order to maintain a principle. The whole notion of a social contract (and some would say, therefore, the whole notion of law), is based on a comparable idea. But this isn't a clear example of that. Here everyone – both pro and anti-abortion – is arguing that their position is the one that minimises the net amount of suffering in the world.
1. Charles, thanks again: no system is close to perfection. Everyday, we get influenced by the diverse mode of advertisements. The physicians get influenced by the pharma companies; the politicians by the think tanks; the students by their teachers and so forth. What other choice does a pregnant woman have in seeking help? if not what the system provides. Even we ourselves are influencing each other by exchanging ideas pertaining to the issue of abortion. So rosy or not, this is what is available to the mother and to others in general. If you have an idea of a better system that is purely objective, then let me hear about it.
2. The moment the right to choose is thrown into the domain of the courts, the woman's autonomy is compromised. Since I am only concerned with the fetus, it is imperative that the mother retains her right to choose. Life is life regardless of how we label it. Parents and the society do their utmost to raise a reasonably healthy child. When the child reaches a certain age, they are sacrificed for the self-interested policies of the political elite. The point I am trying to make is that we precisely know that the soldier may die on the battlefield, yet we willingly accept the consequences. If we are perfectly fine holding such a view, and sending someone to death, then what prevents us from holding another view as well? In this case, my 'best-interest' argument.
3. So for the police, intelligence agencies and the army, torturing almost anyone would be perfectly alright? Your argument is in line with Mill's 'greatest happiness for the greatest number of people' principle. If this is your view, and if it's applied, then those holding power will come up with their own principles to defend the suffering of others – isn't this already happening in the 21st century wars? Or can we be selective about our principles?
I have exactly what info I want. Check, please. Wait, it's free? Aweomse!
This issue has got me thinking in unexpected directions about how (consciously or not) we express / society expresses:
How we value and devalue disabled people.
How we value and devalue women's autonomy.
How we value and devalue the unborn and the born.
And it strikes me that the responses we give reflect our individual interests and styles of empathy, or perhaps even etiquette which we might then be tempted to somehow force into fitting into a more abstract moral language.
On this issue – which has a a cluster of principles (all of which are contested) competing with one another – my intuitons are very confused and suggests to me that moral relativism provides the best starting point to get some kind handle on the issues.
It seems to me there is not one right answer, but many possible answers all of which seem wrong in some ways and right in others. And perhaps completely right to some people and completely wrong to others. And I don't think people will necessarily agree even if they identify with the same moral traditions. Bringing in ideas of the kind of counselling and help with adoption that should be available is a (useful) attempt to reduce the level of wrongness felt, but seem to be more about making our ethical choices seem slightly less monstrous through social engineering rather than solving them altogether.
The rational liberal might simplify the issue to asking administrative questions: who has been harmed? Is the harm the kind that should be compensated for? Who should pay such compensation? At what level? Based on what criteria? But the answers to such utilitarian-sounding questions are not derived from morality so much as from policy, case law and conventions of jurisprudence which are relative to a society.
We could say that all have been harmed – the child (perhaps by nature, the mother or the doctors depending on your point of view), the mother (by the doctors witholding information) and disabled people (by the attitude of the mother and after the judgment, by the court's own judgment too). Those who have to pay compensation can claim to be harmed – and just because it is a court which imposed the fine, it does not mean that such harm is necessarily morally justified, just socially sanctioned. We only put a stop to the claims by a variety of conventions limiting who can claim for what, how, when and why.
If we consider this overall structure (the legislative and judicial customs and systems) in some highly significant way to be "just" then maybe we can say it is moral without going too uncomfortably far down the line of moral relativism – we can insist that the significant factor provides some objective criteria between just and unjust systems which then determines the moral status of the system's conventional procedures for settling claims. But I'm not sure what the significant factor would be for me. Consent perhaps, but how would such consent reasonably be interpreted, at what point in my life, and with what consequences for me if I were to withold consent?
Khalid: Thank you. Re your points:
1. I'm glad that we agree that the counselling available may well be dangeously non-objective. It is no doubt impossible to excise subjectivity from the process.
2. I think we've gone as far as we can in exploring that point.
3. Don't you mean Bentham? Of course torture is unacceptable. The sort of example commonly cited in support of my proposition is legislation against assisted suicide, which might mean that a few individuals suffer in a way that is regrettable in order to keep in play the expressivist function of the law/the protection such legislation can give to vulnerable individuals, etc, etc.
Charles, once again, thank you for your most insightful comments.
3. "Bentham’s influence was minor during his life. But his impact was greater in later years as his ideas were carried on by followers such as John Stuart Mill, John Austin, and other consequentialists." (http://www.iep.utm.edu/bentham/)
Arif: many thanks.
I'd prefer to say not that there are many right answers but that the right answer is crucially fact sensitive, and cannot be reached by the simple application of some ethical algorithm. The first can often look, at first blush, very like the second.
I'd like to offer an honest and heartfelt response to this article.
Once I had lunch with a man who was born without arms. He is one of the 480 survivors of 'miracle drug' Thalidomide brought onto the British market during the early 1960's. He conversed happily and intelligently with his wife at his side, casually picking up his chicken salad sandwich with his toes and eating it as tidily as everyone else. His name is Brian Gault. He has written his autobiography and travels throughout the British Isles and other countries sharing his experience and overwhelming his audience with his encouragement and positive attitude towards life. Royalties from his book 'Look No Hands' go towards Thalidomide children such as those still being born in Brazil.
It's saddening that Ana Majia (and other mothers who choose or would have chosen to abort) don't see or want to believe in the hidden potential and enduring spirit of their children. If we choose to believe that life is sacred, beauty will unfold, even from seemingly tragic and disappointing circumstances. Pregnancy and birth, just like our life and entire lifetime, are filled with moments of discomfort/pain and apprehension of the unknown, but there is also exhilaration, love, a sense of achievement and happiness too. We meet people who surprise us with their humour, way of looking at the world, their endurance through the bad times they have been through, and it makes our lives that little bit more worth living. People like Brian Gould, helping the disabled and inspiring people every day. People like Ana Majia's son could be, if he isn't squashed by the unloving and unhopeful attitudes of his parents.
I am a 29 year old woman who got pregnant while using contraception, not once, but twice. I didn't "choose" to have either of my sons (although I did choose to have sex with the man who became my husband!). I'm not going to lie and say it never crossed my mind to consider abortion. We had very little money and do not live in the UK where benefits abound for children. When I was 25 I did not consider myself to be a "baby" person. Pregnancy and the prospect of taking care of a child DID disrupt the plans I thought I had for my life. But who's to say my life would be any "better", or "happier", had this event not occurred?
Becoming a parent and looking after and loving my children has made me a more decent person, without a doubt. I think of others instead of myself and my own concerns all the time. It feels natural, part of growing up into a mature adult, to be generous and to share everything I have with my family. I feel like a fully alive woman (and yes I lost my pregnancy weight and more; I put on eye makeup every day and I chose to stay at home looking after them both, in case you're wondering). Every day I find out something new about the two little people I have unwittingly brought into the world, and get struck by a sense of awe by how I am helping to shape their identities, their lives. I identify with and help other parents (hey, there are quite a lot of us in the world) and am able to empathise with other mothers, help build family life, and be part of the community where I live. Most of all being a parent has helped me not to cast judgment on people. I have my values, and my opinions, which I think are good, but it is not my position to judge others for the decisions they make. How do I know what they've been through and what circumstances have caused them to arrive at where they're at now?
My final word is that it is God who opens and closes wombs, and it is my opinion that it is better to submit to him, even if he makes us question him sometimes…by "allowing" a baby to be born without arms and one leg, for example. That mother can still have the sacred and incomparable experience of breastfeeding her baby. And yes, children ARE a blessing, if we dare to put our prejudices aside and just love them unconditionally.
Madeleine: Many thanks for this personal and powerful perspective on the issues.
One more article about abortion in the US; this one from yesterday:
http://www.economist.com/node/21536464
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