4 Whose Body? Christopher O. Tollefsen In the philosophical and social dispute over abortion, one premise of the pro-choice argument has been almost unquestioned: that the body, or organism, in which the fetus is gestating is exclusively the mother’s. As the well-known pro-choice slogan puts it, “My body, my choice”.1 This premise is essential to the argument made famous by Judith Jarvis Thomson, that a right to abortion can be sustained even when the personhood and right to life of the fetus are granted. Thomson writes, “Women have said again and again ‘This body is my body!’ and they have reason to feel angry, reason to feel that it has been like shouting into the wind” (Thomson 1971, p. 53). She argues that the rights attending bodily ownership are justly exercised in the decision to detach from a fetal person who has not more or less explicitly been invited to make use of the woman’s body. It is not the case, as David Boonin points out, that Thomson’s claim is that the right to make use of one’s body outweighs, or is more significant than, the right to life of the fetus. Rather, the right to life does not entail a right to make use of the organs or body of another. Thomson raises a possible objection to the claim of ownership only to dismiss it: I suppose that in some views of human life the mother’s body is only on loan to her, the loan not being one which gives her any prior claim to it. One who held this view might well think it impartiality to say “I cannot choose”. But I shall simply ignore this possibility. My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body. (1971, p. 54) This attitude of quick dismissal is the norm but is not universal. In the early 1980s, two articles put forth objections to the view that the “my” claim is entirely on the side of the mother. Jim Stone (1983) and Mark Wicclair (1981) argued separately that the fetus, if assumed to be a person as Thomson does arguendo, has a claim to the organs of the mother such that those organs cannot be said to be “exclusively hers” (Wicclair DOI: 10.4324/9781003181576-6 9781032015149_Ch4.indd 70 13-04-2022 15:41:01 Whose Body? 71 1981, p. 337). Boonin says of this objection to Thomson that it is “[o]ne of the most interesting and least discussed objections to the good Samaritan argument” (Boonin 2002, p. 242), and time seems not to have rectified the latter state of affairs. In Part I of this essay, I look at the original sources of this objection, in Stone’s and Wicclair’s work, and then at Boonin’s response. I argue that if we view the debate in terms framed by the natural law tradition’s understanding of property rights, then the Stone–Wicclair view has more to recommend it than Boonin acknowledges. However, the natural law account of ownership is traditionally thought to be inhospitable to claims that one owns one’s body or body’s organs. As Joseph Boyle puts it, [T]he natural law tradition contains no notion of self-ownership. The idea that the relationship of a person to one of his or her parts could be like the relationship of use that defines ownership relationships is incompatible with the special status the tradition gives to the human person, including the human body. (2020, p. 286) Parts II and III address this challenge, partly by detaching the issue of property rights in organs from that of self-ownership. In Part II, I inquire whether a sound (nondualist) metaphysics of personal identity rules out property rights in organs; I argue that a nondualist metaphysics is compatible with property rights, understood in a Thomistic fashion, both in one’s own and sometimes in another’s, organs. In Part III, I look at the question of self-ownership; I argue that the way in which a person comes to be related to his or her body does not justify a strong form of selfownership, and I show that there are important symmetries between a fetus’s and its mother’s relationship to that mother’s body, and thus to the maternal organs. This symmetry justifies a similarly symmetrical possessive claim on the part of the fetus to the mother’s body (“my ‘mother’s body’”) as that rightly made by the mother to her own body (“my body”). The claims of mother and child that the body in question is “mine” are not univocal but neither are they equivocal; rather, there is an analogous sense of “mine” in the fetus’s relationship to the mother’s body that undercuts Thomson-style arguments for the permissibility of abortion. In Part IV, I briefly indicate some consequences for in vitro fertilization. 1 The Organ Ownership Objection 1.1 Stone In “Abortion and the Control of Human Bodies”, Jim Stone (1983) argues that Thomson is correct that the right to life does not give a(ny) person a right to make use of the organs of another but that it does give 9781032015149_Ch4.indd 71 13-04-2022 15:41:01 72 Christopher O. Tollefsen a (the) fetus that right. For the fetus has come into being dependent upon the organs of the mother as part of the normal process of biological reproduction—i.e., in a way characteristic of members of its species. He supports this claim with a thought experiment involving a species that reproduces by fission. X goes out of existence at 70 years of age, and Y and Z come into being, more or less fully formed, except that Z will need to rely on organs of Y for nine months. May Y disconnect from Z prior to that, as one may disconnect from Thomson’s violinist? Or does Z’s right to life militate against that? Stone argues for the latter position and articulates the principle: An organism with a strong right to life has a right to the continued use of the biological equipment, the use of which it acquires through the normal process of biological creation typical to its species, upon which its life depends. (Stone 1983, p. 83) Stone thinks the principle can be supported: a being with a strong right to life has a prima facie right to use whatever is necessary to sustain life when that use is acquired by mechanisms typical of the being’s species life. This is how I, for example, can claim a right to continue breathing air: I need the use of air to sustain my life, and I came to the use of air by way of mechanisms typical of my species’ life. So there is a broader principle supporting the more specific principle that has application in the abortion case. It is worth saying something about the content of the right. What Stone identifies as a strong right to life here must be understood as a Hohfeldian claim right to noninterference by others in my use of, say, an organ, for the maintenance of my biological life.2 The mother possesses this claim right, and that right will be violated if her use of her organs is interfered with to the detriment of her life. But the fetus also possesses that right on Stone’s account, and abortion—understood as the argument requires, as a form of disconnection, rather than a form of killing—clearly violates that right. It does not, however, appear to be a right to be provided with anything, and this is important: if Stone’s claim, or something like it, is true, then Thomson has misframed the question in addressing it in terms of whether the mother has an obligation—good Samaritan or otherwise—to provide something to her child. Her obligation, rather, is not to interfere with the fetus’s use of those parts of the mother’s body on which the child’s life depends.3 1.2 Wicclair Wicclair relies on a similar thought experiment to Stone’s to again challenge the claim “that a pregnant woman’s body is exclusively hers” (Wicclair 1981, p. 337). Once more, an unusual mode of reproduction is 9781032015149_Ch4.indd 72 13-04-2022 15:41:01 Whose Body? 73 invoked: “Stetians” reproduce at age 40 by falling into a coma. When they awake, a clone is attached and will remain attached for nine months, making use of the first (Alpha) Stetian’s heart while its own develops. If detached prematurely, Beta Stetian will die. Wicclair affirms both that H, the heart, is Alpha’s, and that Alpha has a prior claim to H. But he denies that Alpha has an exclusive claim, for H is a vital organ with which Beta is endowed by nature, just as H is a vital organ with which Alpha is endowed by nature. That fact suffices to give Beta a claim to H, a claim that Wicclair argues is not vitiated by the fact that H is inside of Alpha and not inside of Beta, nor by Alpha’s temporal priority to Beta in claiming a right to H. In particular, the latter line of thought, attributing significance to Alpha’s first occupancy, should not be thought to have application in the Stetian circumstances that it would otherwise have in contexts in which “there is no serious scarcity and when others aren’t significantly harmed by being deprived of the use of the property at issue” (Wicclair 1981, p. 343). In such circumstances, a principle of first occupancy might be reasonable. But, as Beta says to Alpha in Wicclair’s imaginary dialog between the two, if the rule of first ownership were recognized here on Stet, the practice of prematurely disconnecting clones like myself might well be legitimized…. But as you know, if clones are prematurely disconnected, they will die. Recognizing the rule of first ownership, then, would in effect place the prevention of temporary discomfort or inconvenience above the protection of life. This, it seems to me, would be a serious mistake. Any rule of ownership which would legitimize the avoidable death of innocent persons for the sake of preventing temporary discomfort or inconvenience should be rejected on ethical grounds. Hence the rule of first ownership should not be accepted. (1981, p. 344) Let me draw attention to a feature of this argument, clearer in Wicclair’s than Stone’s development, that I believe has been overlooked by its relatively few commentators: although metaphysical/biological factual claims play an important role in prompting intuitions in the story of the Stetians, Wicclair’s argument relies on an independent claim about the reasonableness of conceiving of property rights in a certain way in the factual conditions as described. It is because, on my reading, it would be unreasonable to grant exclusive rights to those with first occupancy in the circumstances as described in the Stetian case that this rule of ownership “should not be accepted”. But there is no straightforward inference from the factual description to the moral norm. In this, Wicclair’s position reflects, perhaps intentionally, an important thread of the natural law tradition’s thought about private property— namely, that property should be considered private in possession or 9781032015149_Ch4.indd 73 13-04-2022 15:41:01 74 Christopher O. Tollefsen ownership but common in use. St. Thomas Aquinas considered social arrangements involving private property generally more reasonable than schemes of common ownership, on the grounds that owning in common creates confusion, quarrels and a lack of care. However, the goods of the earth are, in Aquinas’s view, to be for the benefit of all, and this is precisely why some scheme of private property is required by reason. That is, avoiding quarrels, confusion and lack of care by means of private ownership is demanded by reason in consideration of the need for the goods of the earth to serve common use. The requirement that the goods of the earth serve common use also grounds Aquinas’s view that in emergency conditions, material goods that are the property of one may be used by another to satisfy his need. Aquinas writes, “It is not theft, properly speaking, to take secretly and use another’s property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of this need” (ST II-II 66, a. 7 r.2, my emphasis). In this way again, the underlying use of the world’s natural resources remains common. One can see echoes of this in Wicclair’s analysis; if there is a commonly identifiable situation in which one person can readily be anticipated to have an urgent need of something in possession of another, and in which, generally speaking, that something can be used by the one in need without creating equally urgent need on the part of the prior owner, then it would be unreasonable to grant exclusive rights of use to the prior owner. In keeping with the most fundamental norm concerning the earth’s goods, the one in need has a right claim to noninterference in the use of the good in question. This situation applies in the case of fetuses, who almost always come to exist in a state of need in regard to the use of certain organs otherwise possessed by the mother. It would thus be unreasonable for an understanding of the mother’s ownership, or property rights, in those organs, to exclude that use in the way that Thomson’s argument attempts to justify, and if one were to follow Aquinas’s general line of thought, one might say of the maternal organs, “that which [the fetus] takes for the support of his life becomes his own property by reason of this need”. 1.3 Boonin This interpretation of Wicclair’s argument helps generate a response to David Boonin’s main objection to the view that the fetus has a claim against the mother’s exclusive use of her organs. Boonin focuses on Stone’s assertion that crucial to the justification for the fetus’s claim to use the mother’s organs without interference is the fact that “the use of the [organs] was acquired naturally as a part of the normal means of reproduction for his species”. Boonin questions the significance of this: “Why should the fact that a dependence relation was produced by a natural regularity rather than by a natural mutation make any difference?” 9781032015149_Ch4.indd 74 13-04-2022 15:41:01 Whose Body? 75 (Boonin 2002, p. 245). And he suggests that the natural answer to this is that it is part of the natural function of the processes which establish the dependence relation and the natural function of the organs in question to serve the fetus’s needs as well as the mother’s. But this, Boonin (2002, p. 245) argues, is to beg the question by assuming that the mother’s body is “there for the fetus” when the question at issue is precisely whether the fetus has an entitlement to make use of the mother’s body. However, my reconstruction of the Stone–Wicclair argument does not rely on a claim that anything in particular exists for the sake of anything else. Rather, it rests on a general claim about the material realities of the earth, namely that they exist for the sake of the common use of human persons. It is in light of this “universal destination” of the world’s goods that the justice of schemes of property must be assessed. And it is in that light that the regularity of fetal-maternal dependence makes a morally relevant difference. The appeal is neither to a bare fact of nature nor to a fact about natural function but to a regularity that should be considered by practical reason in assessing the reasonableness of this or that scheme of entitlement to the world’s goods. From that standpoint, a claim to exclusive entitlement that ignored not just a natural regularity but also a natural regularity that bears both upon a centrally important feature of an individual’s existence— namely, his or her ability to maintain his or her life—and a centrally important feature of any human community’s existence—namely, that community’s ability to reproduce itself into the next generation—would be profoundly unreasonable as a way of thinking about property rights. So far, then, there appear to be strong reasons for thinking that the fetus has a claim/right to noninterference in its use of the maternal organs. However, this response raises a question: is the “my” used by the mother in describing her body and her organs best, or entirely or even at all to be understood as the “my” of property? Aquinas himself discusses property in terms of a relation of persons to exterior things, which bodily organs are not obviously an instance of. Perhaps it is the case that if we see the question of how to think of the mother’s organs as a question of reasonable appropriation of natural resources, then the issue unfairly privileges the fetus in a way that will be corrected by thinking of the “my” as the “my” of identity: my body is what I am, not simply what I have, possess or own. And perhaps that more fundamental claim of identity itself provides a more adequate framework from which to think about the mother’s and the fetus’s entitlements. 2 The Mother’s Body 2.1 Holly Smith In considering the role of the “my” of personal identity, rather than ownership, I begin with a discussion of a metaphysical approach with which I disagree but which is articulated by Holly Smith in an attempt to 9781032015149_Ch4.indd 75 13-04-2022 15:41:01 76 Christopher O. Tollefsen respond to the arguments of Stone and Wicclair (Smith 1992). Smith distinguishes between fundamental rights that arise from a natural or metaphysical fact and derived rights that arise from a deeper underlying right; the most relevant part of her paper as regards my discussion here concerns fundamental rights and, in particular, fundamental rights that arise from metaphysical truths about the relationship that obtains between a person and her body. For example, a fundamental right to one’s body might be generated by the “close connection” between one’s personal self and one’s body. Smith attempts to articulate the nature of that close connection and to investigate whether that relationship supports the mother’s or the fetus’s rights to the maternal body more. Relying on Sydney Shoemaker’s analysis of the “close connection” as involving volitional and sensory embodiment, Smith argues that an analysis of this sort supports the mother’s, but not the fetus’s, claim to the use of the maternal body, for the mother, but not the child, acts and senses through the maternal body. Other accounts of the close connection also fail to justify fetal rights to maternal organs. One might support what Smith calls the “extension thesis”—the maternal body is an extension of the fetal body—by analogy to prosthetic parts, such as pacemakers or respirators, which are in some sense an “extension” of the body to which they are attached and to which rights pertain—the pacemaker is “one’s own”, and one “has a right to it”. The question is, what account could ground the claim that the mother’s body is an extension of the fetus’s? (As Smith notes, the extension thesis has often been applied to the relationship between mother and unborn child, who is sometimes said to be a “part” of the mother. I will return to this symmetry later in the chapter.) One answer is that two bodies are in a relationship such that one is a part of the other if the first is organically connected to the second. But, Smith notes, few people would be inclined to say that the famous “Siamese twin” Chang is a part of his brother Eng or vice versa. Nor does Smith think that a “substantial” organic connection can do the necessary dialectical work since the connection between fetal child and mother is, she says, “pretty thin”. It is here that Smith engages the work of Wicclair. Unlike my interpretation of Wicclair, which argued that his approach was at bottom grounded on claims about the reasonableness or otherwise of certain schemes of property, Smith sees Wicclair as giving a metaphysical account of the relationship between the fetus and the maternal body. In Smith’s reading, Wicclair is holding that a vital organ belongs to an organism if that organism was endowed with that organ by nature. Smith does not think that Wicclair’s principle can avoid the unacceptable conclusion that a host organism is thereby a part of a parasite, such as a tapeworm: “It appears that the mammal’s intestine is part of the biological system that naturally sustains the tapeworm’s life, and hence 9781032015149_Ch4.indd 76 13-04-2022 15:41:01 Whose Body? 77 that Wicclair’s account implies the mammal’s intestine is part of the tapeworm’s body” (1992, p. 81). Why is this intuitively false? Because the tapeworm and its host are obviously two different organisms. But on Smith’s (metaphysical) reading, Wicclair cannot make this response because his principle is an attempt to identify what organic realities are parts of others. Ultimately, Smith concludes, Wicclair has given no reason to think that the mother’s body belongs to the fetus in the metaphysical sense of “belonging”, and hence no reason has been found to think that the fetus has a fundamental right to its mother’s body arising directly from the natural or metaphysical relations between the fetus and its mother’s body. (Smith 1992, pp. 83–84) 2.2 A Better Ontology Smith’s arguments begin from an essentially dualistic perspective, according to which the person is something other than his or her organic living body. That account, I and others have argued elsewhere, is false (George and Tollefsen 2008; Lee and George 2008). But her argument might seem to be strengthened by the adoption of a more accurate, nondualistic ontology of the person. Suppose, for example, that we accept the basic premise of “animalism”, that you and I are identical to the organism that is, respectively, reading or writing this chapter. Then, it seems that the mother is identical with the organism that the fetus occupies, and the fetus is identical with a different organism. There seems no longer to be any room for the thought that either one could be a part or extension of the other. My own work on embryo and abortion ethics over the years has relied upon this claim. In Embryo: A Defense of Human Life (2008), Robert P. George and I argued that an embryo is not a part of the mother because both the mother and the embryo are individual, whole, genetically distinct organisms of the human species. It is precisely for this reason, viz., that the embryo is a human being, possessed of a human nature, that it has basic, absolute and unalienable human rights, such as the right not to be deliberately killed when it poses no significant threat to another’s well-being. On such an account, both the mother and the fetus straightforwardly have parts, identifiable as such because, while they are not identical with the organism as a whole, they play some functional role in the biological economy of that organism. At the earliest stages, zygotes and embryos have a cell or cells and a membrane, the zona pellucida, as parts. The embryo is, however, the executor of its own subsequent growth and development, and that development includes the growth of new organs 9781032015149_Ch4.indd 77 13-04-2022 15:41:01 78 Christopher O. Tollefsen and organ systems; the fully developed human organism is, of course, highly complex with many different organic parts. The mother may rightly say of those parts that they are hers precisely because together they compose the organism that she is. And the fetus may say the same about the parts that compose the organism that he or she is. So understood, the parts of an organism are not obviously “exterior things” in the way that the material realities of the external world are. They are parts of one’s personal reality, which encompasses one’s material, organic existence. But it would be too quick to conclude that the arguments of Aquinas about property have no bearing on this situation, and in the remainder of this section, “The Organ Ownership Objection”, I will discuss the ways in which organs might still be considered the sorts of things to which at least some norms about property can be applied. 2.3 Ownership within Identity Are entitlements akin to property rights in one’s bodily organs possible when thinking from a nondualistic standpoint? Or must “exterior things” be construed quite strictly to encompass only things exterior to one’s bodily boundaries? A case that suggests something quite, but not entirely, similar to property rights is the right that persons have to alienate certain of their organs, such as a kidney, blood or bone marrow, in organ donation. Most nondualists accept the moral permissibility of such organ donation, on the condition that the donation is entirely informed and voluntary and that the risks not be too great to the donor. Many of those who accept the permissibility of such donation also hold that such donation cannot morally be financially compensated, and this creates the impression that the relationship of the donor to the donated part is not property relationship. However, it is difficult to see why, if the organ can be alienated as a gift, it cannot also be alienated for money. For example, how could it be permissible to donate a kidney to one’s child but impermissible to sell the kidney in order to pay for a life-saving operation for one’s child?4 Could it be reasonable to see this relationship between a person and her nonvital organs as a genuine relationship of ownership in the sense discussed by St. Thomas? One might think that a salient difference is that my kidney cannot be appropriated by another in grave need, as exterior forms of property can be in an emergency. Nor does there seem to be any prospect that redistributive justice could require that another be given the use of my kidney. But this is too quick. For if we consider the reasons why other persons may not appropriate my organs in an emergency, and why the state may not redistribute ownership rights to my organs, then we see that the 9781032015149_Ch4.indd 78 13-04-2022 15:41:01 Whose Body? 79 rationale complements, like a puzzle piece to its match, the account given earlier of a fetus’s claim rights to noninterference in using the maternal organs. For no person other than the fetus could, without permission, make use of those organs or appropriate them for a third person’s use, without a violation of my bodily integrity. This is precisely what happens, for example, in the violinist case. My organs exist within the space that I occupy, and typically, the only way to those organs is through me. But whatever else may be the case, this is not the fetus’s route: no fetus conceived in a mother’s womb has invaded the mother’s personal space, the space that the mother occupies, in order to gain access to the mother’s organs. Rather, the fetus comes into existence within that space, and in coming into existence, traverses no personal boundaries. Even the subsequent burrowing of the embryo’s syncytiotrophoblast into the uterine lining during implantation is not like the penetration of the outer boundaries of an organism such as might take place in—e.g., a surgical operation. Rather, already biologically finding itself within the maternal bodily space (so to speak), the fetus makes use, without infringing the mother’s bodily integrity, of what, on a Thomistic account of property, he or she is entitled to given the nature of his or her biological needs. The embryo or fetus thus exists in a uniquely privileged position relative to the maternal organs if we concede the legitimacy of the private property analogy. At the same time, that analogy does not prove too much, for there are principled reasons against any other agent’s appropriation. Are there also reasons against the mother treating all her bodily parts as if they were property to be alienated at will, perhaps donating or selling vital organs to another? There are: the mother’s vital organs in general play a much more central role in her survival and flourishing than does any particular exterior thing. And while it could be reasonable, as discussed earlier, for a person to donate or even sell a nonvital organ, it is difficult or impossible to see how the side effects of donating a vital organ could in general be proportionate so as to justify an agent in alienating such organs. But it is not obvious to me that if a situation existed in which, say, one of my bodily organs could be used by another to save his life without either impacting my own life prospects or violating my bodily integrity, that it would be wrong for that other agent to make temporary use of my organ. So, if Thomson’s famous violinist is in the same surgical theater as me while I am undergoing an operation that requires temporary removal of my kidneys, and all of a sudden those kidneys are urgently but only temporarily needed by surgeons to save his life, then perhaps those kidneys could be said to become “his own property by reason of this need”. The consent that would ordinarily be required for any permissible use of another’s organ might in this—extremely unlikely—scenario not be necessary. 9781032015149_Ch4.indd 79 13-04-2022 15:41:01 80 Christopher O. Tollefsen 3 My “Mother’s Body” The discussion of Sections 1 and 2 has concerned a question of “ownership”; the valence of that discussion has primarily been moral, as characterizes the Thomistic tradition of thought on property rights, even through Section 2’s discussion of personal identity. Ownership for Aquinas is properly a set of rights concerning, as Finnis puts it, “management and distribution {potestas procurandi et dispensandi} [and]…use for consumption” (Finnis 1998, p. 190). Correlative to these rights are “oughts”, typically to noninterference of various sorts. “Ownership” is not a deep or metaphysical relationship; it is a moral relationship, and I have argued that so understood, the fetus’s relationship to certain organs of the mother is well understood as a set of rights to make use of those organs with correlative obligations of noninterference on the part of the mother. Indeed, it is precisely the moral nature of that relationship that makes fetal rights to maternal organs co-assertible with the identity claim that characterizes the mother’s relationship to her body: that identity relationship is not construed as a form of exclusive self-ownership. Yet, on a different line of thought traceable back to Locke, identity and self-ownership are so closely implicated as to be almost one and the same.5 One’s sovereignty with respect to one’s body is near absolute: any form of coercion of me in my bodily existence is tantamount to a form of slavery on such an approach, an appropriation of what, in an absolute sense, does not belong to the appropriator. From this standpoint, the mother’s body is absolutely hers in a way that it can never be in relation to the fetus, and for the fetus to use it without consent would again be tantamount to a form of slavery. This section addresses this question of what we might call the metaphysics of self-ownership. It is no more than a preliminary discussion, a sketch of some considerations that suggest two complementary claims. First, a claim of any person to “self-ownership” of his or her body in any deep metaphysical sense is offset by every person’s ultimate inability to “own” the fact that this is his or her body. Each person is radically unanswerable for the fact of their bodily existence and the relation in which they stand to their particular body. Second, although manifestly each person still stands in a vastly more intimate relation to his or her body than almost any other person stands to that body, there is one exception: a fetus exists to his or her mother’s body in very much a similar relation to that in which the mother exists in relation to her own body. Thus, the metaphysical “gap” between maternal and fetal “ownership” of the mother’s body is not as great as one might think. What connects both claims is a symmetry between how any person’s body comes to be his or her body and the way in which a person comes to have a “mother’s body”. Let me begin by explaining this expression, which is ambiguous. 9781032015149_Ch4.indd 80 13-04-2022 15:41:01 Whose Body? 81 In one obvious sense, I can speak of “my mother’s body”. That refers to the body of my mother, her body, which was hers prior to my coming into existence and continues as hers during the period that her and my earthly life overlap. But I want to use the expression my “mother’s body” to refer to something we could understand as my mother’s body insofar as it is a mothering body to me, the body in which I come into existence and which is for some months essential for my life’s continued existence. Prior to 1978, every human being who was born began his or her life in such a mothering body, and of that body, it would make plain sense for the fetal person to say, if he or she could speak, that this is my “mother’s body”.6 So I will use the expression my mother’s body to refer to the body that is my mother’s and my “mother’s body” to refer to the mothering body that is mine, speaking as if from the standpoint of myself in utero. My mother’s relationship to her body and my (in utero) relation to my “mother’s body” are, I will argue, similar in ways that undermine the metaphysical claim of unique self-ownership made by my mother in relation to her body. Corresponding claims to near absolute sovereignty over her body are thus also undermined. Let’s begin with a fact about the human person as it exists in its fullest maturity. Germain Grisez and John Finnis have drawn attention to an important passage in which St. Thomas Aquinas discusses order and the way in which mind relates to order.7 According to Aquinas, there are four orders; first, the order of nature, which mind knows or can know but does not create; second, the order that is introduced by mind into its considerations, an order that includes logic, categorial relations, and the like; third, the order introduced into the will and thence into action by practical reason through deliberation and choice; and fourth, the order that mind introduces, in order to serve various purposes, into the material stuff of the world in art and technique. The person can be said to exist in all four orders, for persons have a bodily reality (first order), are minded and have a cognitive openness to the world (second order), constitute themselves through their choices as the persons they are (third order) and creatively reshape both themselves and their material world in art and technique (fourth order).8 In all four orders, the person’s existence is reflexive: most prominently, the mind knows that it knows in knowing, reflexively wills in willing and is aware 9781032015149_Ch4.indd 81 13-04-2022 15:41:01 82 Christopher O. Tollefsen of itself and its engagement in the world in making. But even in the first order, sentient living bodies display some reflexivity when, for example, they recalibrate their position in relation to something in virtue of sensory experience (as when a dog shifts its position and perspective to continue tracking a moving object). For the mature human person, that sensory reflexivity shapes and is shaped by the person’s existence in the second, third and fourth orders, as when the cognitive, volitional or technical possibilities available to a person are structured by bodily facts about that person or as when a person deliberately shifts her bodily position in order to gain a better epistemic, agential or technical vantage point on a situation. In each of these orders, then, the human person is reflexive, but it is in the second, third and fourth orders that reflexivity is most obviously personal and self-conscious. By contrast, in the first order, human persons exist for a period of time with no self-conscious reflexivity at all, not even the sensory reflexivity characteristic of nonpersonal organisms. And so philosophers, when thinking of what it means to be a person and the conditions under which one exists as a person are often tempted to hold that persons only come to exist when one or another or all forms of selfconscious reflexivity characteristic of persons comes to exist—some considerable time, clearly, after the beginning of the existence of the human organism, an entity that exists in the first order, independent of any activity of mind. As noted earlier in this chapter, I reject that conclusion, which entails an indefensible dualism; my body is in fact a part of me and not other than I, though what I am transcends my bodily reality. Nevertheless, I wish to draw attention to this independence, in its originating condition, of the person in the first order from any of the characteristics of the other three orders. The initial coming into being of the person as a bodily organism radically establishes the third-personal factual conditions in which the radically first-personal self-reflexive “I” of the other three orders finds itself and with, in, and through which it must live and act during the rest of its bodily existence. One’s entire life in the second, third and fourth orders continues to be conditioned by the radical contingency and facticity of the state of affairs that this organism is me. My personal/ first-personal life seems to radically transcend my bodily condition, and yet I existed as bodily before ever being able to consider myself as myself (nor did I exist prior to that organism’s coming into existence). My body is I, but I also transcend that body, so it is mine. Yet its being mine is something for which I am neither answerable nor accountable; I can take no “ownership” of it. It is mine by no act of mine; it is me prior to any thought of it as mine; it is mine and me through what has to be understood as the most fantastic contingency imaginable, the union of one (of approximately 250 million) sperm with one oocyte at one particular moment in one particular place. Even those two agents most 9781032015149_Ch4.indd 82 13-04-2022 15:41:01 Whose Body? 83 responsible for the event that brought me into existence themselves can take no “ownership” of the event in question: they chose neither the event nor me. At the same time, there is no “I”—not this one—without precisely that contingency; I could not have come into existence save through exactly that fantastically improbable event. Contingency and necessity are thus intertwined in the interplay between my identity as I exist in the first order as a living organism and my thinking, choosing and making identities. To return to where I started: this body is me and mine, yet I can take no ownership of it, no responsibility for the fact of its being mine; while I transcend my body, its facticity and sheer contingency also transcend because they precede and establish my person in the second, third and fourth orders, for the reflexivity characteristic of me in those orders is radically dependent upon that facticity and contingency of my existence in the first order. These claims are equally true, of course, in regard to my mother and her body. And taken together, they suggest something less than a picture of absolute self-sovereignty and self-ownership. Yes, my body is mine, as my mother’s is hers. But they are our bodies in ways that, as I have said, we can take no ownership of. Rather, they are ours in what I will characterize as a radically unbidden way, more akin to a gift than to something we have taken possession of.9 And, I shall now argue, this way in which our bodies are ours is strongly paralleled in the relationship of a fetus to his or her “mother’s body”. Thus, consider me as I came into existence in relation to, specifically, my “mother’s body”. At precisely the moment in which I came to be as this organism, I stood in relation to my “mother’s body” with that same combination of contingency and necessity that I stand into my own body and that she stands into hers. For I could have come into existence in no other way: any other organism that came into existence in her body at that time could not have been me, nor could I have come into existence in the body of some other mother at that or any other time. Even the window within which I could have come into existence within my “mother’s body” was radically limited. My existence is linked of necessity to a contingent relationship to my “mother’s body” that at the same time necessarily could not have been otherwise without my nonexistence. It follows, of course, that I can take no “ownership” of my relationship to my “mother’s body”; I chose her no more than she chose me. Yet— again, from the vantage of my first coming into existence—her body is also at the same time uniquely mine in the category of “mother’s body”: she is my “mother’s body”—no other organism at that time can stand in that relationship to her (save, mutatis mutandis, a twin) and I can stand in no like relationship at that or any other time to some other “mother’s body”. So there are intriguing symmetries between my, or my mother’s, relationship to our bodies and my relationship to my “mother’s body” 9781032015149_Ch4.indd 83 13-04-2022 15:41:01 84 Christopher O. Tollefsen (a relationship that she had, of course, to her “mother’s body”). The symmetries include the radical unbiddenness of a person’s relationship to both his or her body and to his or her “mother’s body”. I neither chose nor was chosen by her, just as she did not choose her own body, nor was it chosen for her. And this, I am suggesting, means that her claim to her body ultimately rests on a foundation that is similar to my claim to her body: the sheer facticity of having come into existence in an identity and dependence relationship with that body. There is asymmetry, of course, for the mother’s identity relationship with her body is a true identity relation, whereas my identity relationship to her body is somewhat different: I would not have an identity relationship with my own body save for my relationship with her. But in both cases, the relationship is unasked for, unbidden, contingent out of our control. Here then is the metaphysical upshot. Because in the deepest sense, she can take no “ownership” of her own biological identity as this organism, there is no metaphysical ground on which to base a claim to absolute sovereignty over her body. And so any metaphysical objection, based on identity, to the fetus’s property rights in its “mother’s body” is avoided. At the same time, in my in utero relation to my mother, I can assert genuine, though certainly not exclusive, rights to her body insofar as it is needed to sustain my life in its earliest stages. Recall Thomson’s claim: “My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body”. My argument in this section, like my arguments in the previous sections, questions this claim. During pregnancy, two (or more, if there are twins or triplets, or…) persons have an equally just “claim” to the mother’s body: the mother and those human beings for whom that body is their “mother’s body”. Given that relationship, eviction is unjust. 4 Postscript on In Vitro Fertilization As mentioned, prior to 1978, each human person came into existence with a “mother’s body”, which was his or hers. But beginning in 1978, some persons have come into existence in a petri dish. Their bodily identity is related, certainly, to the identity of their biological mother; but their existence lacks the unbiddenness that is characteristic of human coming-to-be. And, importantly for the argument of this essay, their subsequent existence within a maternal body also lacks that unbiddenness, for it comes to pass only as the result of a specifically consented to act in which the embryo is inserted into the mother. She accepts this embryo into her person in a manner similar to the owner of a domicile who accepts borders: on her own terms. Those terms include the permitted use of her organs by the embryo who is the object of the transfer rather than, as in the case I have been describing, the making use by right of those organs. That embryo’s relationship to 9781032015149_Ch4.indd 84 13-04-2022 15:41:01 Whose Body? 85 his or her gestational mother’s organs is thus radically different from that of each human person’s relationship to the organs of his or her “mother’s body” (i.e., each unborn person who is not the result of in vitro fertilization or some similar form of assisted reproduction). I believe that the picture I have put forward, both in the sections of the chapter that discussed the unborn person’s “property” rights in the maternal organs and in the third section’s discussion of the unborn person’s “mother’s body”, is a picture of radical equality between unborn and maternal persons. I cannot defend the claim here, but it seems to me that assisted reproductive technologies in which a child comes into existence outside the body of her biological mother radically impair that relationship of equality. Notes 1 But see the somewhat pragmatic doubts about this slogan voiced by prochoice philosopher Elizabeth Lanphier (2021). 2 Hohfeld’s account, in his 1919, 2001 work is helpful explained in Finnis (1980, 2011, pp. 199–205). 3 Presumably, however, that basic claim right may be supplemented by rights that the mother act in certain ways, to the extent possible—e.g., adequately take in nutrition and hydration. 4 The example is from Boyle (2020, p. 301). 5 Locke writes, Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. (Locke 1980, p. 19) 6 I’ll discuss the case of those individuals who were conceived outside a mothering body in Section 4. 7 This account is found in Aquinas (1964); see also Grisez (1975) and Finnis (1998). 8 For further discussion, see Tollefsen (2018). 9 I think that something like this is also true of the relationship between the goods of the earth and all individual human beings; this is the metaphysics behind the universal destination of goods, viz., a metaphysics on which no particular human beings are accountable or answerable for the gifts offered by the created world. References Aquinas, St. Thomas, 1964. Commentary on the Nicomachean ethics, trans. by C.I. Litzinger. Washington, D.C.: Henry Regnery Co. Boonin, D., 2002. A defense of abortion. Cambridge: Cambridge University Press. Boyle, J., 2020. “Personal responsibility an freedom in health care: a contemporary natural law perspective”, in J. Liptay and C. Tollefsen, eds. Natural law ethics in theory and practice: a Joseph Boyle reader. Washington, D.C.: Catholic University of America Press, 275–305. 9781032015149_Ch4.indd 85 13-04-2022 15:41:01 86 Christopher O. Tollefsen Finnis, J., 1980, 2011. Natural law and natural rights. Oxford: Oxford University Press. Finnis, J., 1998. Aquinas: moral, political, and legal theory. Oxford: Oxford University Press. George, R.P. and Tollefsen, C., 2008. Embryo: a defense of human life. New York: Doubleday. Grisez, G., 1975. Beyond the new theism: a philosophy of religion. Notre Dame, IN: University of Notre Dame Press. Hohfeld, W.N., 1919, 2001. Fundamental legal conceptions. Abingdon: Ashgate. Lanphier, E., 2021. “With abortion heading back to the supreme court, is it time to retire the ‘my body, my choice’ slogan?” The Conversation. Online: https:// theconversation.com/with-abortion-heading-back-to-the-supreme-court-is-it-timeto-retire-the-my-body-my-choice-slogan-163770 Lee, P. and George, R.P., 2008. Body-self dualism in contemporary ethics and politics. New York: Cambridge University Press. Locke, J. and Macpherson, C.B., ed., 1980. Second treatise of government. Indianapolis: Hackett Publishing Company. Smith, H., 1992. Whose body is it, anyway? Philosophical Perspectives. 6:73–96. Stone, J., 1983. Abortion and the control of human bodies. Journal of Value Inquiry. 17:77–85. Thomson, J.J., 1971. A defense of abortion. Philosophy and Public Affairs. 1:47–66. Tollefsen, C., 2018. Aquinas’s four orders, normativity, and human nature. Journal of Value Inquiry. 52:243–256. Wicclair, M., 1981. The abortion controversy and the claim that this body is mine. Social Theory and Practice. 7(3):337–346. 9781032015149_Ch4.indd 86 13-04-2022 15:41:01