Beyond pragmatism: Defending the 'bright line' of birth

• Published in: Medical law review Vol. 22; no. 4; pp. 494 - 525
• Main Author: Burin, Achas K
• Format: Journal Article
• Language: English
• Published: England 01.12.2014
• Subjects: Abortion; Abortion, Legal - ethics; Appellate courts; Civil law; Common law; Human Rights; Humans; Infant, Newborn; Infanticide - ethics; Infanticide - legislation & jurisprudence; Law and legislation; New South Wales; Parturition; Personhood; GREAT BRITAIN; New South Wales; Ethics; Common law; Death; Birth; Abortion; Harm
• ISSN: 0967-0742; 1464-3790
• DOI: 10.1093/medlaw/fwu017

It is usually accepted by ethicists that birth does not alter moral status. Rather, it is thought that the rule according full legal rights at birth is pragmatic. Pragmatic reasoning is vulnerable to competing practical concerns and stronger moral principles. This 'bright line' has therefore been criticised both by those who believe personhood begins before birth and those who believe it begins afterward. In particular, a recent article by Giubilini and Minerva puts forward both pragmatic and moral arguments in favour of permitting infanticide, and the New South Wales Court of Criminal Appeal has suggested there is a strong case for abandoning the bright line ('R v Iby' (2005) 63 NSWLR 278). If we desire to defend current legal doctrine against such criticism, a medical and philosophical basis for the law should be articulated. This article suggests such a medical and philosophical basis. It argues that both the multiplicity of biological changes occurring in the neonate at birth and the extrauterine context (the world) provide a justification for the distinction drawn at law between abortion and infanticide. With reference to Robert Nozick's 'experience machine' thought-experiment and elements of phenomenological philosophy, it advances two propositions to explain the status-changing nature of the neonate's emergence out of the womb. First, that expressing sentience in the world is essential for the attainment of personhood. Second, that having become a person, the harm in killing is disruption of this engagement with the world and the reduction from personhood to non-existence. This is the distinction between a neonate's death and the termination of a foetus, underscoring the qualitative difference between the two sides of the bright line drawn in law.