In 2012 Alberto Giubilini and Francesca Minerva published a paper in the Journal of Medical Ethics arguing that given the same moral status or lack thereof between a foetus and a new born baby, the same conditions that would justify the killing of the foetus also justify the killing of the new born. Their argument is structured around what they take to be the fact that neither the new born nor the foetus is a person (a highly disputable assumption), in which case it is not subject to a moral right to life in which case the rights and interests of actual persons, such as the mother, people in society etc, ought to take priority. They consider the potentiality objection to the effect that both the foetus and the new born are potential persons and so should be afforded the rights that all persons have; they reject this objection arguing that no harm is done to a potential person by not allowing such an entity to develop into a person. They also reject the adoption objection to the effect that adoption would be a better option than abortion or after birth abortion since they do not believe that it is straightforwardly true that the mental health of the mother would be better in the adoption case than in the abortion/after birth abortion case; and if in this case the interests of what they take to be an actual person (the mother) should prevail, then after birth abortion should be a valid alternative to adoption.

After birth abortion is a real issue and not just an academic matter; this is because when abortions are carried out post-viability sometimes they are not successful and the doctor along with supporters of abortion are left with a conundrum. On the one hand the mother has approached the doctor for an abortion, and in the majority of cases what this entails is a termination of the pregnancy and the death of the child. But in cases where the abortion is unsuccessful, the pregnancy is only terminated but the child is not dead.

Given that the mother has requested an abortion, does this extend only to the termination of pregnancy or should it extend to the death of the child?

If one holds that an abortion is unsuccessful unless the child’s life is ended, then one is left with the uncomfortable conclusion that the infant born alive should have its life ended; and if one does not recognise the right to life of this infant then one cannot recognise the right to life of any other infant. Hence Giubilini and Minerva’s conclusion follows and abortion, on this view, can be justifiably extended post-birth.

On the other hand, if one holds that in requesting an abortion a termination of pregnancy is sufficient but not termination of life (presumably because the infant born as a result of a failed abortion has a right to life), then one can query why the infant has a right to life only after being born but not whilst in utero. Indeed, the birth of the child is a rather arbitrary limit on the right to life such that an infant born alive after an unsuccessful abortion is no different from the same child in utero just prior to the abortion.

All of this goes to highlight a central feature of Giubilini and Minerva’s argument, and this is that if the right to life is only extended to individuals of a certain maturity or a gestational limit, then any limit to that right is arbitrary and the goal posts can be moved from 12 weeks to 26 week to full term to after birth and beyond. Indeed, once the limitation to the right to life comes to depend on some arbitrary point, the being in question ceases to have any right to life, but merely enjoys the privilege and benignity of those in power over him or her. In reality, the only limit to the right to life is not being the kind of thing subject to such a right. So, human beings are the kinds of things subject to a right to life, and so the limit on that right is that of not being a human. But this entails that the right to life cannot be based on any gestational limit or beyond, in which case the unborn child has as much a right to life as the newborn and beyond.

Dr Gaven Kerr