The Rights of the Embryo and the Fetus
gennaio 1990
Introduction
The difficulty and the importance of this argument call for some preliminary considerations which touch on problems whose solutions are at the basis of this specific argument.
Rights
One of the roots of our Western culture, planted in our European consciousness by Greek philosophy, is actually formed by the concept of “right”. This term indicates a human being’s inherent need, founded on the very nature of the human being himself. On one hand, the discovery of this dimension of the human being delivers him from unconditional submissiveness to others or to some-one else, and on the other hand, it constitutes the fundamental and ethical point of reference of every organization — political and nonpolitical — in human society. Thus, every social organization is ethically qualified, because of its recognition of these needs (rights), which are written into the very nature of a human being.
Fundamental Nature of Rights
However, in order to appreciate the whole “specific weight” of this discovery, one must consider that the foundation of man’s rights, the reason for their existence, does not come about through other people’s decisions, whichever way they manifest themselves. It is not other people’s decisions that create man’s rights, the constituent subject, but it is the person’s own specific nature; it is the humanity of the person.
Exercising rights, and the way in which one defends them if they are violated, largely depends on historical conditions, but their existence itself does not depend on anything.
Rights: a Fundamental Human Attribute
A third introductory consideration follows: neither age nor social class nor any other factor is relevant to the existence of man’s rights, apart from purely and simply 75 being a man.
Having made these three introductory comments, which actually merit further development, I can now enter the proposed theme, following a chronological order.
In vitro Fertilization
In 1978, humanity discovered a second way of giving origin to, or better, of providing the conditions for the origin of a new human being: artificial fertilization as an alternative to procreation through the heterosexual union. Here we have the first problem concerning the legal status of the human being: is the way in which the human individual is introduced into existence irrelevant or does he have the right to be conceived by a heterosexual union? Our thesis is that the human individual has the right to be conceived by a heterosexual union carried out by a legitimately married couple.
To me, there seem to be at least three reasons why this first right of the embryo should be established.
(a) The nature of these technique (artificial fertilization) is such that a relationship of production-product is created, and even if only for a few hours, a person is treated as a thing and not as a person.
(b) The modality of the technique, at least at present, is such that a choice between more than one embryo has to be made.
(c) One deduces that it has to be a marital-sexual act, both from the fact that only a certain stability of the couple assures the embryo’s education and from the fact that only the act of love institutes a true reciprocity between the one who procreates and the one who is procreated.
Human Origin
Before continuing further, it is necessary, today more than ever before, to define as clearly as possible, from which moment the embryo begins to be a subject of rights. Taking into account the first introductory comment, the question “when does the embryo begin to be the subject of rights?” coincides with the question “when does a new human being begin to exist”, which is the necessary and sufficient condition in order to begin being human. The fact that this is the necessary and sufficient condition can quite easily be shown per contrarium. If belonging to the human race were not the necessary and sufficient requirement in order to be the subject of rights, it would immediately become necessary to establish which is the extra (apart from belonging to the human race) requested as being sufficient. The pure and simple fact of making this request requires the affirmation of the existence of a subject authorized to ask himself (and to answer) whether I belong to those who, apart from belonging to the human race, also have that extra or not. But, in that case, the right would no longer be a right, but rather a concession of that authority. Whether it be a single authority or a parliamentary majority is completely irrelevant to the question. In the same way it is completely irrelevant whether that concession is made (or denied) in view of my well-being/happiness, which is the common justification for what is good for me becomes the source — the ratio essendi — of my right to that good; if that judgement is for someone else to make, then society as a just order, is destroyed at the root.
It is true that one might object that the extra required is actually an objective criterion for discriminating between belonging to the animal race and belonging to the human race; but, one does not see why this criterion has to be exclusively biological/genetic: man is simply someone who has been conceived by a human mother. The reason is that if something else is required as the extra, one inevitably falls into the concept of right as a concession of grace by one person to the other. Only genetic-genealogic reasoning in fact precedes every human judgement decision.
If the “extra” were, for example, freedom, there are (and there have been) philosophical currents which have simply denied its existence. However, we can leave this aside and ask which freedom is required, since nobody will want to deny that one becomes free. Who establishes the degree of freedom below which one is not a subject of rights?
And so what about the exercise of reason: exactly the same problem recurs, since after all, freedom and reasoning never arise so that one can suddenly externally determine the moment of their birth.
Thus, the only real criterion remains the following: one becomes a subject of rights the moment one is conceived, that is, from the moment, biologically speaking, there is a new human being, belonging to the human race.
Certainly exercising human rights has to be limited by the necessities of human society. However, at least two rights escape these necessities: they cannot be limited in any way. The first is the right to physical life. In fact, this right is the basis which supports all the others and, therefore, to admit that limiting it is right equals, once again, making the existence of all the other rights depend on the legitimate authority, denying the existence of the right itself. In fact, limiting the right to live has one exact meaning and one only: murder. Precisely because it is fundamental one docs not make real distinctions (but only conceptual ones) between the right to live and the exercise of the right to live, which is not so for other rights. The second right is the right to religious freedom, which has always been presented by John Paul II as the test to control the seriousness of every argument on human rights. This, however, is not relevant to the present considerations.
Absolute Nature of the Right to Life
Once brought into existence, in whichever way, the embryo has the right to live. This is the original and fundamental right, in the sense that all the other rights are based on it, as has already been said. It is an unconditional right: a right that does not depend on anything. It is a recognition of such an important affirmation that I would not hesitate in considering it the basic criterion, according to which one can discriminate a social human being from a social being who is only called human.
In fact, if an innocent individual’s right to exist is conditioned by “something” and by “someone”, it is like establishing a value classification between human beings, judging some of them to be worthy of the respect of others. Only utilitarian and/or hedonistic criterion can obscure human consciousness to the point of accepting such discrimination: resigning oneself to the substitution of the justice of strength for the strength of justice.
Right to Health
In connection with this fundamental right is the embryo and the fetus’ right to health and therefore to being taken care of.
This is a theme that, since it is new, should be seriously studied by anyone who studies ethics and law. The “no” that every honest conscience has to say to abortion, must be complemented by a “yes” to research, so that from the very beginning of his existence the human being will be taken care of when sick.
As far as the precise determination of the contents of the embryo and the fetus’ right to health, it seems to me that this right is identical, in its basis and in its contents, to the right to health of the person who is already born. The whole deontological code regulating the exercise of medicine with respect to the human being who is already born regulates also the one with respect to the embryo and the fetus. And in this way resorting to abortion shows itself to be not only an immoral act but also antiscientific. Scientific knowledge has never progressed when it has taken the easy way: suppressing an embryo or a fetus because it is seriously sick is certainly easier than committing oneself to rigorous scientific research, aiming to discover the prevention or the therapy.
In the levelling of the two rights to health, that of the adult and that of the embryo, one must underline the following: it is easier to violate the embryo’s right, resorting to pure clinical and surgical experimentation; this is why that right has to be protected with special care.
Duty to Protect Rights
Every right corresponds to a duty. Putting into action everything that makes this right effective is the duty corresponding to the embryo and fetus’ right to health. Who is the subject of this duty? The responsibility of this duty is divided within the present (national) health organization.
(1) Normally the countries with a more advanced democracy are aware that they are subject to this duty. It should be normal that the State’s health commitment also includes the human being who has been conceived but is not yet born.
(2) The doctor is obviously responsible; it is therefore necessary to introduce the field of embryonic/fetal medicine more widely into the medical schools’ scientific training.
Conclusion
The commitment in scientific research and in clinical and surgical practice to protect the embryo’s right to health, constitutes the ethical alternative to the degradation of the doctor’s dignity caused by the laws for abortion.
Once again, the absolute ethical veto of abortion has already had and has as its effect, the obligation of scientists and doctors not to settle for the “already known”, but “seguir virtude e conoscenza”; that is to simply be faithful to their mission as scientists and doctors. Ethics is never antiscientific; (true) science is never immoral. Oppenheimer wrote that with the atomic bomb, physics discovered sin: has the present nobilizing of abortion made medicine discover sin? Perhaps, or rather: abortion emphasizes the intrinsic ambiguity of a medicine that want to separate itself from man.
| 
english version 
