The Supposed Rights of the Fetus
by
Russell Blackford
First published in Quadrant 389 (September 2002): 11-17.
Issues arising from actual or proposed scientific research on human embryos have introduced
a renewed urgency to the long-running public policy debate about the moral rights of human
zygotes, embryos and fetuses. The debate inevitably provokes participants to make familiar
claims about the ethical acceptability or otherwise of abortion, since the arguments about
abortion and embryo research share some of the same logic.
Underlying issues relating to potentiality arise in all these arguments, though they can be
brought out most clearly in a discussion of abortion, where there is a deliberate intention to
end the development of a living organism that is clearly human (in the sense of its species
membership). Furthermore, arguments based on the developmental potential of a zygote,
embryo or fetus have been developed in their most sophisticated form in the context of the
abortion debate.
I propose to revisit the implications of fetal potentiality—the potential for a fetus to become a
fully-developed human being—for the ethical permissibility of abortion. Except where
specific distinctions need to be made, I will use the word "fetus" somewhat loosely, to refer
to all stages of development from fertilisation to immediately before birth. I will argue that
abortion does not violate any interest of the fetus that we are ethically obliged to respect. This
does not rule out the possibility that some kinds of abortions are ethically impermissible for
other reasons. For example, it might well be ethically impermissible for a woman to have a
very late abortion, or to decide on an abortion purely because of the sex of the fetus. If so,
however, the source of this impermissibility must be found elsewhere than in the mere fact
that the fetus is a potential person or that it has some interest that is entailed by its
potentiality.
If we reject arguments based on potentiality in the context of the abortion debate, it follows
that we must also reject them in the context of debate over research on embryonic stem cells,
or other research involving the destruction of human embryos. Indeed, there are broad
implications for public policy in respect of contentious bioethical issues.
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The most sophisticated arguments that fetal potentiality does matter may be those developed
by Jim Stone in two well-known articles published in the Canadian Journal of Philosophy, in
1987 and 1994 respectively: "Why Potentiality Matters" and "Why Potentiality Still Matters."
In arguing that a fetus has serious interests that are harmed if it is aborted, Stone suggests that
it has an interest in completing its normal developmental path in growing to become a human
adult. To prevent this from happening is to inflict a serious and ethically impermissible harm
on the fetus.
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Stone suggests, with some reason, that "it is time we quit attacking straw men", i.e. defending
abortion by attacking unsophisticated concepts of potentiality. Clearly, it is desirable that
anti-abortion arguments based on fetal potentiality be examined at their strongest, especially
since such arguments have implications for other aspects of public policy in the field of
bioethics. Accordingly, I have structured this article around Stone's argument and concepts.
This provides a degree of focus and unity, while also ensuring that the concept of potentiality
under discussion is one designed to avoid obvious absurdities.
Stone acknowledges that a fetus's mental and physical capacities are inferior not only to those
of a human adult, but also to those of many adult non-human animals. It follows, in his view,
that no obligation arises from any ethically significant physical or mental capacities that a
fetus possesses. He suggests that any strong ethical claim to protection that can be made on
behalf of a fetus must appeal to its potential to grow and develop into an adult human being,
"for nothing else can justify it."
I follow Stone in accepting the uncontroversial point that no fetus has such capacities as those
for self-awareness, reason and reflection. However, without additional argument, it is far
from clear that nothing else whatsoever, apart from potentiality, can justify ethical restraints
on how we treat a fetus. There might be other sources of ethical standards according to which
abortion is impermissible.
For example, there might be important utilitarian considerations to take into account before
we simply treat fetuses however we like, such as adverse social consequences that might flow
if abortion became very common. In principle, this might justify an ethical rule against
abortions. Again, Stone assumes that the mere fact that a human fetus belongs to our
particular species is ethically irrelevant, but this is not clearly so. As recognised in antiquity
by the much-maligned Greek sophist Protagoras, one source of our ethical standards might be
the need for human beings to distinguish themselves from and compete successfully with
other species, in order to survive. If that is so, there is a broadly consequentialist justification
for a rule against harming beings of our own species.
Accordingly, no assumption should be made that potentiality is the only consideration that
could justify an ethical standard against which abortion is impermissible. Still, it is difficult
to identify other considerations strong enough to rule out early abortions (or, indeed, embryo
experimentation). The point made by Protagoras, and discussed more recently by the
philosopher J.L. Mackie, would not seem to have application to an early fetus that has
received minimal, if any, social recognition and familial investment.
Stone introduces the idea of "strong potentiality", arguing that a fetus is, in a strong sense, "a
potential adult human being". Since he believes that no ethical right to life is entailed merely
by membership of the species homo sapiens, he poses the central question as: "When and in
virtue of what do members of the species homo sapiens … acquire a right to life?" In
answering that question, he emphasises that certain "goods" are typically enjoyed by adult
human beings, including self-awareness, social interaction, and the possibility of moral
stature. The argument is that a fetus has the capacity to develop into a being which is capable
of enjoying these goods, and that this is prevented by abortion.
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Stone's concept of a person, borrowed from John Locke, is that of a being which has "reason,
reflection and self-awareness". Stone sees adult human beings as typically possessing those
characteristics, and thus being persons. These characteristics are closely linked to the goods
that he sees a fetus as being deprived of if it is aborted, and therefore prevented from
developing into a human adult. Stone's argument, then, can be revised, without any material
distortion, along the lines that to abort a fetus is to frustrate its potential to develop into a
person and enjoy goods typically available to persons living socially with other persons.
The plausibility of the argument depends on distinguishing two senses in which we might
claim that A is a potential B. The first, "weak", sense requires only that A is a causal element
in the production of the relevant B and that the physical matter of A will be, or will help
produce, that of the B. In this sense, a human sperm cell is a potential adult human, and thus a
potential person. However, it appears absurd to suggest that any serious wrong is committed
if a sperm cell is destroyed. Thus Stone requires a more restricted concept of potentiality.
The "strong" sense of potentiality developed by Stone adds an additional requirement that "A
will produce a B if A develops normally and the B so produced will be such that it once was
A." In other words, A will, "normally", become a B. In developing a similar concept of
potentiality, Stephen Buckle has explained the idea of "becoming" along the lines that, if A
develops and becomes a B, then A's identity is preserved.
For Stone, a fetus has a strong potentiality to become a person. If it develops normally, it will
become a person that was the fetus. Since he considers strong potentiality to be ethically
significant, this "establishes the fetus's right to life", even though an ovum or a sperm cell has
no rights at all, since neither, by itself, can become a person. Much of Stone's argument is
spent in attempting to show that no absurdities follow from seeing the potentiality of a fetus
as morally significant, since such things as sperm cells, eggs, and systems of sperm cells and
eggs that have not yet been united possess only weak potentiality.
However, Stone's definition of strong potentiality also requires a concept of what counts as
"normal development". He defines this in terms of an entity having a nature of such a kind as
to determine a developmental path. In the case of biological entities such as a fetuses, he
refines this further. Such an entity "develops normally if it follows to the end the
developmental path primarily determined by its nature which leads to the adult stage of
members of its kind."
One way of responding to the argument is to test the coherence of this idea of "normal"
development. In a reply to Stone's first (1987) article, also published in the Canadian Journal
of Philosophy, John Andrew Fisher argued that a fetus can take various developmental paths,
at least in principle, so we cannot identify one path as normal. Stone, however, has clarified
what he sees as "normal" development in this context. He proposes that identity is maintained
if there is no genetic alteration, or only a minor one, and any developmental path that follows
from the genetic code of an animal can be considered normal.
As explained by Stone, the physical organisation of an entity such as a fetus, particularly its
genetic code, reveals what can be considered normal for its development. An entity's nature
and its normal path of development are to be understood in terms of what might be called the
entity's functional "design", which might, of course, arise from evolutionary processes, not
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from the deliberate actions of any intelligent designer (we can use the expression "quasidesign"). This does, indeed, appear to be a coherent account of "normal" development,
imposing an intuitively comprehensible natural restriction on what kinds of potentiality can
be considered "strong".
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Stone argues that strong potentiality is ethically significant in the case of a fetus because the
actualisation of its nature will benefit it, in so far as it will enjoy such goods as selfawareness, social interactions, and the possibility of moral stature. In short, it has an interest
in growing up.
From this, he suggests that a fetus has a right to receive care and protection:
I submit that we have a prima facie duty to all creatures not to deprive them of the
conscious goods which it is their nature to realize. As the good grows greater, our
duty grows stronger and harder to override. Self-awareness, I believe, is greater than
mere sentience; hence we have a powerful duty to protect and care for human infants
as well as the infants of any species the adult members of which have self-awareness.
In this respect, a fetus's right to life is derived in the same way as that of a baby which has
actually been born: an "infant". In each case, the right to life is merely the corollary of our
supposed ethical obligation to care for it, protect it, and assist its development to personhood.
Speaking of infants, but insisting that exactly the same argument applies to a fetus, Stone
argues that we owe them "care and protection because death harms them terribly" by
depriving them of goods such as self-awareness.
Conversely, Stone argues, weak potentiality does not matter, ethically, because if a first
creature does not become a second creature, but merely produces it in some other way, "that
first creature has no conscious good of its own, hence no welfare or rights." This provides an
explanation as to why his contentions about strong potentiality do not flow over into weak
potentiality, which could have absurd results.
One way to test the sophistication and persuasiveness of this argument is to examine how
well it fares against arguments that it is permissible to destroy potential persons. In his
celebrated (or perhaps notorious) study, Abortion and Infanticide (1983), Michael Tooley
discusses six such arguments, four of which he considers successful. These arguments were
not devised to answer Stone's specific argument, but they are sufficiently comprehensive to
give an indication of how successful Stone's argument is in avoiding obvious rebuttals or
absurd consequences. I will consider them in order.
1. "Reprogramming" persons
First, Tooley discusses the argument that it would be ethically impermissible to "reprogram"
an actual person by giving the person a new set of "beliefs, attitudes and personality traits". In
the case of a human being, this would presumably require extensive neurophysiological
alterations. Tooley suggests that it is not wrong to carry out such reprogramming at the
potential person stage. The argument concludes that the best explanation for this difference
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may be "simply that it is not wrong to destroy potential persons".
Tooley does not believe that this argument succeeds, since it does not eliminate the
possibility that it is wrong to destroy potential persons simply because they are intrinsically
valuable entities. In any event, the argument is ineffective against Stone's line of argument
for another reason, which Tooley does not identify.
On Stone's account, the kind of loss that a potential person suffers when it is destroyed is
different from the kind of loss that a person suffers from being "reprogrammed". Presumably,
the reprogrammed person suffers a loss of psychic integration, access to lived experience, and
similar goods—losses that a potential person cannot suffer. However the potential person
suffers a different loss: the opportunity to have any self-awareness at all. It is not surprising
that different kinds of losses can be inflicted on persons from those that can be inflicted on
potential persons, and Stone offers a plausible account of what kind of loss can be suffered by
the latter.
2. Cloning the space explorer
Tooley next considers an argument advanced by Mary Warren in which we are invited to
imagine that a space explorer is captured by aliens who propose to create hundreds of
thousands of human beings from the cells of his body, destroying him in the process. Our
intuition is that the space explorer is entitled to escape from this situation, though it means
that many persons fail to come into being.
Tooley does not think that this argument is effective as it stands because a conservative could
deny that human cells are potential persons, even if some science fictional technology could
be used to develop them into persons (as might indeed be the case if cloning by somatic cell
nuclear transfer were perfected). Indeed, Stone restricts his criteria for strong potential
personhood quite closely; in particular it involves some kind of functional design, or
evolutionary quasi-design.
As Tooley puts it, Warren would need to employ a further premise: that there is "no morally
significant interpretation of 'potential' according to which human foetuses, but not human
cells, are potential persons." A philosopher such as Stone, writing broadly in the natural law
tradition, could reject that premise. Stone has a coherent concept of strong potentiality that
would not be instanciated by a somatic cell, even if technologies such as reproductive cloning
became available.
3. The unrestricted potentiality principle
Tooley argues that it is necessary to base the argument against destroying a potential person
on a wider principle which he calls "The Unrestricted Potentiality Principle". It is worth
considering his formulation of this, because it can then be compared with Stone's concept of
strong potentiality:
The destruction of a potential person is intrinsically wrong, and seriously so, where X is a
potential person if and only if X is an entity, or system of entities, that has all, or almost all of
the properties of a positive sort that together would be causally sufficient to bring it about that
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X gives rise to a person, and where there are no factors present within X that would block the
causal process in question.
He argues that we are required to adopt such a broad principle because it cannot be relevant
whether or not the entity in question is biological, so long as it is capable of giving rise to a
person. Furthermore, it is possible that a person could be a system of entities, rather than a
single entity, or that a system of entities could rise to it. Accordingly, a potential person
might be a system with spatially separated parts.
All these points should be granted to Tooley. Perhaps it is possible that a sufficiently
complex, intricately connected non-biological entity or system could become conscious and
self-aware. Thus the principle is correctly expressed in a general form to apply to nonbiological entities and to systems of entities.
While this is persuasive, Tooley's formulation of the principle is wider than any which
Stone's argument requires. For Stone, it is important that A is organised in such a way that it
has the potential to become a B, not merely "give rise" to it. Thus, counter-examples to the
principle enunciated by Tooley do not necessarily refute Stone's argument.
For example, Tooley discusses the case of a machine which contains a sperm and an ovum,
and has the capacity to fertilise the ovum, then nourish the resulting being. Imagine the
machine has started, but fertilisation has not yet occurred. Tooley suggests that few people
would consider interfering with the machine to be seriously wrong. However, Stone could
reply that this example contains no entity, or system of entities, that has been wronged in the
sense that it has been deprived of the opportunity of growing into personhood. In this
example, neither the total system, the machine, nor the individual sperm or ovum has the
capacity to become a person.
While Stone's argument about fetal potentiality depends upon a principle that cannot be
restricted to non-biological entities and to systems of entities, it is legitimately restricted to
those entities and systems that can actually become persons because of their functional
design, or quasi-design. Any counter-examples must be framed consistently with that
restriction.
4. Almost active potentialities
Tooley notes that we must speak of an entity or system that is a potential person "having all,
or almost all, of the properties that are causally sufficient", since a human fetus cannot, by
itself, become a person. He then offers the counter-example of a woman and a collection of
sperm as a system that is capable of giving rise to a person, though the system could be
destroyed by spermicide. But, Tooley says, it seems absurd to suggest that the use of
spermicide involves any serious wrong.
Again, this is not a counter-example to Stone's line of argument, since it postulates no entity
or system of entities that could ever become a person. Tooley is correct that a conservative
argument must use principles broad enough to deal with an entity, or a system of entities, that
might require something further, such as some kind of care, if it is to become a person. But
Stone's argument cannot be invalidated by counter-examples in which no entity or system is
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prevented, if deprived of care, from developing into a person.
5. The moral symmetry argument and the responsibility to produce persons
Tooley devotes most of his analysis to an argument based on "moral symmetry", the principle
that there is no ethical significance in the mere distinction between acts and omissions. He
argues that this principle entails that the destruction of a fetus is prima facie no more
seriously wrong than intentionally refraining from fertilising a human ovum. Accordingly, if
destroying a fetus is seriously wrong, so is intentionally refraining from fertilising an ovum.
But that conclusion would be seen by most people as absurd.
However, even if the principle of moral symmetry is accepted, Stone's argument remains
unscathed. Stone argues that there is an independent principle that we not harm the interest of
a potential person in becoming a person. If this is accepted, it is significant that, where we
simply refrain from creating a potential person at all, there is never an entity whose interests
are harmed. On Stone's account, the ethical equivalent of killing a potential person would be
allowing it to die, not simply refraining from procreation.
6. Moral comparability principles
Finally, Tooley argues that we can derive strong ethical conclusions even if we adopt various
principles related to the moral symmetry principle, though weaker than it. However, such
arguments again assume that there is no independent principle that we not harm the interests
of a potential person by denying it personhood. Against the argument advanced by Stone, this
sixth argument also fails.
#
Consideration of the arguments advanced by Tooley suggests that Stone's arguments and
concepts do not involve obvious absurdities and are not open to easy refutation. However,
Stone's case succeeds only if we accept the general principle that it is ethically impermissible
to deny assistance to any entity, biological or otherwise, or any system of entities, that is
functionally organised to become a person and enjoy associated goods such as selfawareness.
It is not obvious that we should accept such a principle. Indeed, the principle faces serious
difficulties, which can be seen when we consider a claim made by Feinberg, which Stone
attempts to refute:
Without awareness, expectation, belief, desire, aim, and purpose, a being can have no
interests; without interests he cannot be benefited; without the capacity to be a
beneficiary, he can have no rights.
Here, Feinberg denies that an insentient potential person has interests at all. Furthermore,
even if Feinberg is wrong in this respect, and there is something that can, with all propriety,
be called an "interest" in having the opportunity to become a person, where does this get us?
What is the source of our ethical obligation to respect and further this particular kind of
interest?
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Stone believes that such an interest must exist and must be ethically significant. His argument
depends on the fact that, like the unborn, the newborn have very undeveloped mental and
physical capacities. If the interest does not exist, he says, "we cannot harm a baby by killing
her painlessly", a proposition that he considers counter-intuitive. If our intuition is justified,
so he argues, a potential person not only has an interest in growing into a person; that interest
must also be one which gives it a right that we respond in certain ways.
The difficulty with this argument is that it appeals to our strong intuition that it is ethically
impermissible to kill a baby, while falsely suggesting that the source of the impermissibility
must be the baby's interests and rights.
There is no universal intuition, across human societies, that a newborn baby, much less a
fetus, has interests, rights or ethical entitlements. It does seem that all human societies accept
that, once a child is born it is morally wrong to kill or injure it, at least once a certain time has
elapsed and it is on the path to adulthood. But that is not because it is seen as holder of ethical
rights. Since this attitude is manifested even in societies that practice infanticide, its
explanation is likely to be the instinctive bonding of parents with children, the significance
accorded to a new member entering into the community, and the community's hopes for its
future, which are literally and symbolically bound up with the birth of children. As Mary
Warren and others have suggested, the importance of these considerations is a more likely
source of ethical standards in respect of the treatment of very young children.
Furthermore, it is implausible that the source of ethical obligations towards children in our
own society is a principle that potential persons have rights. Paul Gomberg has pointed out
that our society appears to recognise a separate set of ethical standards relating to our duties
to our offspring, which he calls the morality of nurturance. Its "central norm" is a duty
imposed on parents "to nurture their offspring, to provide them with sustenance and guidance
until they reach self-sufficiency."
The difficulty this poses for Stone is that widely-acknowledged ethical standards associated
with nurturance appear capable of distinguishing an increasing responsibility to care for a
fetus as it develops in the womb. However, this is inconsistent with Stone's belief that any
potential person suffers the same loss if it is destroyed before it reaches personhood. It
appears that, at least for many people in our society, the source of ethical standards in how
they treat children (including during pregnancy) is actually inconsistent with Stone's account.
Stone might, of course, argue that such nuanced ethical standards are simply wrong, but
nothing he says addresses this. Their existence makes it less likely that his own account of
fetal interests and rights and rights is required to provide a basis for common intuitions about
the impermissibility of harming a baby, or even a fetus at a late stage of development.
Accordingly, consideration of the standards recognised by our own society, and by human
societies in general, suggests that Stone is left without another example, other than the
situation of a fetus, to support his view that potential persons, as such, have interests which
we are ethically obliged to respect. He is forced to generalise from a class of one member—
and the very class that is controversial.
Furthermore, even if potential persons were recognised as having an interest in attaining
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personhood, it is not clear why that interest should impose an obligation that we further it. It
is at least as intuitively plausible to suggest that we are ethically permitted to live our own
lives and that this includes pursuing our own interests, even at the expense of the interests of
others, unless there is some sound reason why we should be restrained from doing so.
In principle, there may be a variety of such reasons that we might recognise as requiring us to
restrain the purely selfish pursuit of our own interests. However, it is not clear what reason
could apply in this case. Even if we speak of a fetus, or another potential person, as having an
interest in becoming a person, exactly what harm does it suffer if the interest is not met?
It cannot experience any frustration of its desires, because it has no desires. The mere failure
to meet this interest does not inflict any pain. It does not experience fear, so the wrongfulness
of our action cannot consist in inflicting upon a entity something that it fears. Nor has it
begun a life whose coherence or value may be ruined by being cut short. We do not reveal
ourselves as cruel if we terminate the development of a merely potential person painlessly, or
with minimal pain. It is difficult, in short, to see why the interest is one that must command
our respect. It seems to be a totally theoretical interest. It might unkindly be called a
contrived one.
Since there are no real-life situations that are closely analogous to abortion, we are forced to
think of imaginary examples, but these do not seem to assist Stone. For example, we could
imagine that a powerful computer has been developed, and has been programmed in such a
way that it will continually upgrade itself and eventually reach self-awareness. Are we now
under an ethical obligation to provide it with electrical power until such a time as it becomes
self-aware? Perhaps we must ascribe to the computer a right to continue in existence, without
being reprogrammed, once it has become a person, but it is not obvious that we are ethically
obliged to supply it with a continuous source of electricity prior to that point.
Yet this device seems to have a "nature" in an analogous sense to the genetic program of a
fetus. Unless specifically religious considerations are introduced, or some kind of quasireligious significance is imputed to functional "design" arising from biological evolution, the
situations of the fetus and the advanced computer cannot be distinguished. There is, of
course, no typical outcome here, if the computer is one of a kind, but this does not seem to
matter if it otherwise has all the features of strong potentiality for personhood. Furthermore,
we can alter the thought experiment to imagine a world where such devices are
commonplace, so we can speak sensibly of a typical adult member of its kind.
Many people shy away from such science fictional examples, but they are a useful way to
examine the underlying logic of ethical arguments and isolate our intuitions on precise issues.
The important point here, however, is not so much that the science fictional scenario is a
counter-example to Stone's argument. It is that he does not have an example at all on which
to base his exhortation that we adopt a strong potentiality principle. An attempt to find
examples merely shows that they are: (1) rather far-fetched (if that matters); and (2) not
supportive of Stone's intuitions. It is difficult to imagine any example that supports his
intuitions, unless we are prepared to argue from analogy with human abortion, which is
exactly the action whose ethical permissibility is in question.
Thus, Stone's argument against abortion, based on the strong potentiality principle, is either
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ultimately groundless or circular.
In conclusion, a coherent account can be given of a kind of potentiality for personhood that is
possessed by a fetus and is not possessed by other entities such as sperm cells, ova, and
somatic cells, by women who have had sexual intercourse, or by science fictional devices that
might lead to the creation of an adult human being. It can then be argued that this kind of
"strong potentiality" has an ethical significance, without leading to the absurdity of ascribing
ethical significance to other kinds of potentiality, such as that possessed by a sperm cell.
Such an argument resists many of the typical counter-arguments directed at potentiality as an
ethical consideration in the abortion debate. However, it requires that we ascribe interests to
entities that are unable to suffer any pain or frustration if their so-called interests are not met.
Even if an interest of that kind can be recognised at all, a further argument is required as to
why it is one that should be respected and furthered, imposing an ethical restriction on our
self-regarding conduct.
It appears that no such argument is available. An ethical rule to the effect that such interests
must be furthered cannot be found by generalising from other cases, for no other real-world
cases are salient. The case of infanticide (or even that of late-term abortion) is easily
distinguishable. Consideration of science fictional cases does not advance the argument any
further. Accordingly, although a coherent account of "strong potentiality" can be developed
along the lines suggested by Stone, it does not adequately ground an argument against
abortion. Arguments against abortion, or against certain kinds of abortions, need to be based
on some other source of ethical standards than moral rights that are supposedly entailed by
potential personhood.
Accordingly, arguments based on strong potentiality fail when deployed in the abortion
debate. For precisely the same reasons, they must fail in any public policy debate in the field
of bioethics, when legislative prohibitions are urged, based upon the supposed rights of
zygotes or embryos. The implications for the current debate about stem cell research are
obvious. When rational analysis is applied to the strongest arguments put by conservatives
against harming such entities as human embryos, the arguments fall apart.
Thinkers in the natural law tradition may be able to follow Stone in strengthening their ideas
with concepts of functional quasi-design taken over from the field of evolutionary biology.
They may be able to persuade some others to abstain voluntarily from practices such as
abortion and stem cell research on human embryos, but the moral principles relied upon are
not universally accepted. Nor is there any rationally compelling basis why they should be, or
why they can legitimately be imposed upon society as a whole. It is time to reject those
arguments once and for all as a basis for setting public policy in the field of bioethics.
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