Abstract
The recent convergence of technological, medical, and social factors has lent a new interest and urgency to philosophical problems about the ascription of rights, particularly the right to life. Our technology now enables us to keep persons’ bodies functioning even after they apparently have irreversibly lost consciousness or have been reduced to states that seemingly no longer include cognitive abilities. Until recently, irreversible cardiac arrest was the sufficient and necessary legal criterion for the determination of death; but now the point at which it could be properly said that a person has died has become unclear.
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Notes
From this point, we will use the term “fetus” to refer to unborn humans at all stages of development. We generally will not distinguish the term fetus from terms such as “conceptus,” “zyg-ote,” and “embryo.”
There are other factors, too, that include issues of inheritance, as well as issues of criminal charges of homocide. For example, a married couple with siblings but no children are shot while being robbed. They have no written wills. Both sustain severe injuries. After 2 days the wife is brain dead but kept somatically alive. The husband suffers irreversible cardiac arrest on the third day. Given that inheritances go to the blood relatives of the last surviving spouse, which siblings should get the inheritance? Moreover, is the assailant to be charged with two homicides or one?
A Definition of Irreversible Coma, Report of the Ad Hoc Committee of the Harvard Medical School. Journal of the American Medical Association, Vol 205, No. 6 (August 1968), pp. 337–340.
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining Death, (Washington, D.C.: U.S. Government Printing Office, 1971).
Ibid., p. 2.
Thus, for example, the parents of a child who had suffered head trauma resulting in irreversible coma in a state in which the brain-death criteria had not been accepted requested that the child’s life support be removed. When the courts refused, they attempted to have the child moved to a state in which he could be declared dead.
In Europe, and in some states, dye injections may be used to determine whether or not there is brain-cell activity. Sometimes too, dye tests may be used to confirm an electroencephalograph reading.
There are circumstances in which life-support interventions will be continued. These include cases in which permission has been given to harvest organs, unusual cases in which the “neomort” is pregnant and there has been a request or legal order to try to bring the fetus to viability, and, sometimes, instances in which the patient or his family had religious objections to brain-death criteria for death.
Anne Rot and H.A.H. van Till, Neocortical Death after Cardiac Arrest. Lancet, (November 1971), p. 1142.
Remembering that under most whole-brain-death criteria, including the Harvard criteria, the presence of any of these activities does not allow a declaration of death.
Ronald Melzack, The Puzzle of Pain (New York: Basic Books, 1973), pp. 15–17.
Not entirely, of course.
Though some would argue about that “certainty.”
Of course, that may be irrelevant to the formation of a just policy. Likely, most laypersons would have a hard time seeing the brain-dead person as a dead person.
J. David Bleich, Minority Opinion, in The New York State Task Force on Life and the Law, Do Not Resuscitate Orders (New York: New York State Task Force on Life and the Law, 1986).
This term is borrowed from Michael Tooley. Abortion and Infanticide, Philosophy and Public Affairs, 2 (Fall 1972), pp. 37–65.
Plato, Theaitetos. Trans. John Warrington (London: J. M. Dent and Sons, 1961), pp. 67–157.
I have depended heavily on The Morality of Abortion by John Noonan (Cambridge, Mass: Harvard University Press, 1970) for my discussion of the history of abortion in Catholic thought.
Roe v. Wade. 410 U.S. 113, 93 S.CT. 705 (1973).
Ibid.
The reader should also refer to Chapter 1.
Although there might be a question about the possibility of making a Kantian universal law permitting abortion.
See Chapter 1 for an explanation of “perfect” and “imperfect” duties.
An argument might be given to claim that they have a positive right to life also.
For philosophers, we are simplifying matters by treating theories such as that by John Locke as mixtures of natural law and contract theories.
Cf. Jay E. Kantor. The Interests of Natural Objects. Environmental Ethics, 2 (Summer 1980), p. 168., Michael Tooley, op cit.
More will be said about the positive right to life later.
Cf. Kantor, Tooley, op cit.
What is sometimes called “reflective” consciousness.
This is a confused claim made by St. Thomas and Hobbes, among others, who spoke of having innate desires to live. Organisms, including humans, may have innate responses to stimuli, and those responses may tend to keep the organism alive, but that is different from having a concept and desire to stay alive per se. Thus, for example, the kitten or newborn infant that avoids falling off high places almost certainly is not thinking to itself, “If I crawl any further, I will fall off and die.” Clearly, any claims about the degrees or lack of degrees of nonhuman animal consciousness are controversial.
This raises an important issue of animal rights. This argument may entail that earthworms have a right not to be put into needless pain even though they may not have a right to life. Some books on animal rights are referred to in the Bibliography.
And we really face similar difficulties when we try to determine the degree of consciousness of nonhuman primates which seem to have complex brains and complex behaviors.
Remembering that a right to life entails that violation of the right will mean inquest, trial, and possibly, severe punishment.
We will discuss this issue in Chapter 5, “Psychiatric Ethics.”
See Chapter 1.
At this writing, there are court cases considering this very issue.
There are a number of cases in which women have been forced to undergo procedures such as cesarean sections for the sakes of their fetuses. These cases are in appeal at the time that this is written.
Though we should reiterate that classical theories of rights also seem to imply that infants do not have rights.
Bibliography
Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. A Definition of Irreversible Coma. Journal of the American Medical Association, Vol 205, No. 6, 1968: 337.
Bleich, J. David. Minority Opinion. In The New York State Task Force on Life and the Law, Do Not Resuscitate Orders. New York: New York State Task Force on Life and the Law, 1986.
Feinberg, Joel (Ed.). The Problem of Abortion. (2nd ed.). Belmont: Wadsworth, 1984.
Kantor, Jay E. Some Rights of Some Non-Moral Agents—Necessary and Sufficient Conditions for Personhood. Diss. CUNY, 1978.
Kantor, Jay E. The Interests of Natural Objects. Environmental Ethics, 2 Summer, 1980.
Kindregan, Charles P. Abortion, The Law, and Defective Children. Washington, D.C.: Corpus, 1969.
Lamb, David. Death, Brain Death, and Ethics. New York: SUNY, 1985.
Melzack, Ronald. The Puzzle of Pain. New York: Basic Books, 1973.
Noonan, John. The Morality of Abortion. Cambridge, Mass: Harvard University Press, 1970.
Plato, Theaitetos. Trans. John Warrington. London: J.M. Dent and Sons, 1961.
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining Death. Washington, D.C.: U.S. Government Printing Office, 1971.
Roe v. Wade. 410 U.S. 113, 93 S.CT. 705 (1973).
Rott, Anne and H.A.H. van Till, Neocortical Death after Cardiac Arrest. Lancet, November, 1971.
Tooley, Michael. Abortion and Infanticide. Philosophy and Public Affairs, 2 Fall, 1972: 37–65.
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Kantor, J.E. (1989). Personhood and the Right to Life. In: Medical Ethics for Physicians-in-Training. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-1672-3_3
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