by Joyce Arthur (copyright © August 2001)

The main argument of the anti-choice movement boils down to this: a human zygote, blastocyst, embryo, or fetus is a human being with a right to life, and abortion is therefore murder and should be illegal. This assumption is deeply flawed.

At the outset, let me say that from a pro-choice point of view, the status of the fetus is a peripheral issue. Regardless of whether a fetus is a human being or has rights, women will have abortions anyway, even if it means breaking the law or risking their lives. Even women who believe that abortion is murder have chosen to get abortions, and will continue to do so[1]. That's why we should leave the decision up to women’s moral conscience, and make sure that they are provided with safe, legal, accessible abortions. Because ultimately, the status of a fetus is a matter of subjective opinion, and the only opinion that counts is that of the pregnant woman. For example, a happily pregnant woman may feel love for her fetus as a special and unique human being, a welcome and highly anticipated member of her family. She names her fetus, refers to it as a baby, talks to it, and so on. But an unhappily pregnant woman may view her fetus with utter dismay, bordering on revulsion. She cannot bring herself to refer to it as anything other than "it," much less a human being. She is desperate to get rid of this unwelcome invader, and when she does, she feels tremendous relief. Both of these reactions to a fetus, and all reactions in between, are perfectly valid and natural. Both may even occur in the same woman, years apart.

However, anti-choicers insist not only that a fetus is a human being, but that this status is an objective scientific fact. Unfortunately, they are assuming the very thing that requires proving, thereby committing the logical fallacy of "begging the question." Biology, medicine, law, philosophy, and theology have no consensus on the issue, and neither does society as a whole. There will never be a consensus because of the subjective and unscientific nature of the claim, so we must give the benefit of the doubt to women, who are indisputable human beings with rights.

Anti-choicers must claim that fetuses are human beings, of course, or they really have no case against abortion. Since this claim is the cornerstone of their position, it should be critiqued in detail, from philosophical, legal, social, and biological perspectives[2]. Even though it has little relevance for the actual practice of abortion, the assertion that fetuses are human beings has a potentially great impact on the rights of women.

Deconstructing Anti-Choice Language

Before going further, we need to clarify and interpret some anti-choice language. First, anti-choicers often confuse the adjective "human" and the noun "human being," giving them the same meaning. I am struck by the question they often put to pro-choicers: "But isn't it human?" —as if we secretly think a fetus is really a creature from outer space. If you point out that a fetus consists of human tissue and DNA, anti-choicers triumphantly claim you just conceded it's a human being. Now, a flake of dandruff from my head is human, but it is not a human being, and in this sense, neither is a zygote[3]. Anti-choicers will respond that a fertilized egg is not like dandruff, because the fertilized egg consists of a unique set of chromosomes that makes it a separate human being. But with cloning, a cell from my dandruff is enough to create a new human being. Although it would have my identical genetic make-up, it would still be a unique individual, because human beings are much more than our genes (I'll expand on this point later). Also, both a fertilized egg and a cloned cell represent a potential, not an actual human being. It’s a worn cliché, but it bears repeating—an acorn isn’t an oak tree and the egg you had for breakfast isn’t a chicken.

Anti-choicers also use the phrase "humanity of the fetus," by which they may mean its physical human qualities, but it’s ambiguous, maybe purposely so. In this context, the word "humanity" implies compassionate human feelings and virtues, such as pathos or love. The term seems cleverly designed to elicit sympathy for a fetus, and assign it human-like qualities it simply does not have. The ability to feel joy, sadness, anger, and hatred are an integral part of our "human beingness," and we do not learn to develop such sophisticated emotions until we start socially interacting with others.

An alternate phrase heard by anti-choicers is: "It's a life"—another ambiguous and vague term. A fetus is certainly alive, and it might fairly be argued that a fetus is a distinct living entity (a debatable point though, because of fetal dependence on a woman's body), but this reasoning can apply to any living thing, including worms and germs. Simply calling a fetus "a life" says nothing, unless the term is meant as another way of saying "a human being," which means anti-choicers are just begging the question again.

The same problem afflicts the anti-choice phrase: "Life begins at conception." Biologically speaking, this is a nonsensical statement since life began only once on this planet, over three and a half billion years ago, and hasn't stopped since. A fertilized egg is simply life continuing in a modified form—only one small step removed from the separate sperm and ovum, both alive before joining together, and both representing the unique genetic potential of a human being. In an anti-choice context, the term "Life begins at conception" can only be translated as: "A human being starts at conception." Once again, this is begging the question. Perhaps a potential human being gets its start at conception, but the fact that life is a continuum makes even this equivocal.

Is a Fetus a Human Being?

Historically, a fetus has never (or very rarely) been considered a human being, at least not before "quickening", an old-fashioned term indicating noticeable movement of the fetus. The Catholic Church even allowed abortion until quickening, up until 1869[4]. Further, the wide variety of laws throughout the world were written specifically to protect born human beings and their property. There is virtually no legal precedent for applying such laws to fetuses[5]. Even when abortion was illegal, it had a lesser punishment than for murder, and was often just a misdemeanor[6]. The anti-choice view of fetuses as human beings is therefore a novel and peculiar one, with little historical or legal precedent to back it up.

Fetuses are uniquely different from born human beings in major ways, which casts doubt on the claim that they can be classified as human beings. The most fundamental difference is that a fetus is totally dependent on a woman's body to survive. Anti-choicers might argue that born human beings can be entirely dependent on other people too, but the crucial difference is that they are not dependent on one, specific person to the exclusion of all others. Anybody can take care of a newborn infant (or disabled person), but only that pregnant woman can nurture her fetus. She can’t hire someone else to do it.

Another key difference is that a fetus doesn't just depend on a woman's body for survival, it actually resides inside her body. Human beings must, by definition, be separate individuals. They do not gain the status of human being by virtue of living inside the body of another human being—the very thought is inherently ridiculous, even offensive.

Does a Fetus Have a "Right to Life"?

Anti-choicers say that a fetus has an inherent "right to life." But many of them support exceptions to a ban on abortion in cases of rape, incest, or a threat to the woman's life, or even health. This clearly indicates that they believe the right to life of a fetus is negotiable, certainly not absolute or paramount. By compromising their "right to life" definition in order to accommodate a woman's rights, they inadvertently acknowledge that women's rights are more important than the "right to life" of fetuses.

Even if a fetus can be said to have a right to life, this does not include the right to use the body of another human being. For example, the state cannot force people to donate organs or blood, even to save someone's life. We are not obligated by law to risk our lives jumping into a river to save a drowning victim, noble as that might be. Therefore, even if a fetus has a right to life, a pregnant woman is not required to save it by loaning out her body for nine months against her will[7]. (In response, anti-choicers say that being pregnant is not the same as being a Good Samaritan, because the woman chose to have sex, voluntarily accepting the risk of pregnancy[8]. But sex is not a contract for pregnancy—people have a right to non-procreative sex[9]. Their argument is also sexist and puritanical because it punishes women, not men, for their sexual behaviour.)

Even if a fetus were a human being with a right to life, this right doesn't automatically overrule a woman's right to choose, which can be argued to have a higher moral value under the circumstances. The free exercise of one's moral conscience is a fundamental right in our society. And since pregnancy entails profound physical, psychological, and long-lasting consequences for a woman (it is not a mere "inconvenience"), her freedoms are significantly restricted if she is forced to carry to term.

If fetuses did have a right to live, one could make an equal case for the right of unwanted fetuses not to live. This is alien to the anti-choice assumption that all life is precious and should be encouraged and preserved at any cost. In the real world, however, some people commit suicide because they no longer want to live, and others wish they’d never been born. Life is not a picnic for all, especially unwanted children who are at high risk for leading dysfunctional lives[10]. Many people believe that being forced to live is a violation of human dignity and conscience. To be truly meaningful, the right to live must include the flip side, the right to die.

Ultimately though, to have a "right to life" requires that one be an individual capable of living an independent existence. One must "get a life" before one has a "right to life." A fetus is not a separate individual—it lives inside a pregnant woman and depends on her for its growth. In fact, the biological definition of "parasite" fits the fetal mode of growth precisely, especially since pregnancy causes a major upset to a woman's body, just like a parasite does to its host. I'm not trying to disparage fetuses with the negative connotations of the word parasite; in fact, parasites and their hosts often enjoy mutually supportive relationships, and this obviously includes most pregnancies. However, the parasitic relationship of a fetus to a woman means that its continued existence requires her consent[11]—if she continues the pregnancy unwillingly, her rights and bodily integrity are violated.

Can a Fetus Be a Legal Person with Rights?

Anti-choicers like to demand legal rights for fetuses. Significantly, there is no support for fetuses as legal persons in international human rights codes. The Universal Declaration of Human Rights says that "All human beings are born free and equal in dignity and rights." Virtually all national constitutions do not treat fetuses as persons or citizens. American citizenship is limited to those "born or naturalized in the United States" (as per the 14th Amendment) and the word "Everyone" in the Canadian constitution has been deemed by the courts not to include fetuses[12].

Declaring fetuses to be legal persons with rights would generate countless legal and social dilemmas. Fetuses would have to become dependents for tax and estate purposes, be counted in official census-taking, and be subject to many other laws affecting persons. Wouldn't every zygote have to have a Social Security Number, as well as a Certificate of Conception? The sheer absurdity of this proposal reveals that society does not think of fetuses as persons in the normal sense at all, and would have great difficulty trying to treat them as such.

Anti-choicers might argue that special laws or legal exceptions could be written for fetuses to accommodate their unique characteristics, but the very fact that exceptional laws for fetuses would have to be created proves that they are incapable of having the same legal status as real persons.

If anti-choicers want fetuses to share the same human rights as the rest of us, this means they should enjoy the constitutional freedoms of religion, speech, assembly, and other basic freedoms. Since fetuses are physically incapable of believing, speaking, or assembling, they cannot have or exercise any constitutional rights. This puts them in a totally different category than regular human beings. To give another example, the Canadian Charter of Rights and Freedoms says that "Every citizen of Canada has the right to enter, remain in and leave Canada." Fetuses obviously cannot qualify for such a right on their own. Ironically, the Charter also says "Everyone has the right not to be arbitrarily detained or imprisoned"— if fetuses did have rights, this would outlaw forced pregnancy!

The biggest challenge in giving legal rights to embryos arises when trying to decide whose rights would take precedence when they conflict—the woman's or her zygote's. The idea that a grown woman's value and status can be equated with, or overridden by, a cluster of undifferentiated cells the size of the period at the end of this sentence is not only bizarre, it's insulting. We are treading on dangerous moral and legal grounds when we exchange a woman’s actual rights in favour of an embryo's theoretical rights.

The 1973 U.S. Supreme Court decision legalizing abortion, Roe v. Wade, tried to balance the rights of women and fetuses by allowing states to restrict abortion in the third trimester, except to protect the life or health of the woman. But this balancing act was a sham—women's right to choose would not be infringed in practice, because Roe v. Wade only prohibited the mythical "casual" late-term abortion invented by anti-choicers. In the real world, healthy pregnant women with healthy 8½ month fetuses do not casually demand abortions, and doctors do not casually agree to do them. To suggest otherwise is an insult to both women and doctors. Unfortunately, because of its faulty assumption that fetuses need to be protected from women's irresponsible decision-making, Roe v. Wade opened the door to the passage of many laws making it harder to access abortions, as well as a weakening of the decision itself by later Supreme Court rulings. Women’s liberty and bodily integrity have been violated accordingly.

I agree with the U.S. Supreme Court that the state has an interest in protecting fetal life, but this should be done through guaranteed access to pre-natal care, health care, and education for pregnant women, not by restricting abortion. Pitting the rights of women against their fetuses harms them both—for example, women will avoid pre-natal care entirely if they fear being arrested for endangering their fetus by drug abuse. Canadian courts have wisely backed away from trying to give any protections to fetuses in such circumstances, because they realize it might infringe on women's established human rights. As a result, pregnant women in Canada enjoy exclusive rights over their bodies. To turn the tables and demand legal rights for fetuses is a direct call for the legalized oppression of women, by stripping them of their constitutional rights and personhood. This loss of rights and identity would occur not just during a nine-month pregnancy, but would, by logical necessity, reach to some extent into women's lifelong role as mothers and mothers-to-be.

Ironically, anti-choicers are trapped in a fatal contradiction here—women are undeniably human beings; yet anti-choicers are quite willing to sacrifice the human rights of women in favour of fetuses, whose status as human beings is highly questionable. If they can’t even respect the lives and rights of born human beings, why should we trust their alleged concern for fetuses as human beings?

Does a Fetus Have a Social Identity?

A big part of what makes us human beings is our ability to participate in society, or at least be recognized as a member of society. Fetuses are excluded both by necessity and custom. There can be no meaningful social participation for someone cocooned inside another's body. Fetuses do not even have a social identity, since names are not officially bestowed until after birth. In fact, a birth certificate marks the first legal recognition of a person's existence. And fetuses are generally not given ritualized burials when miscarried or aborted. It is quite telling that the death of a newborn infant is much more of a crushing blow to parents than an early miscarriage. People simply place a higher social value on infants than fetuses, and this convention is ingrained in our culture and history.

In earlier times, even infants may not have been valued members of the society yet. Infanticide has been a common practice throughout history as a way to select for healthy, wanted babies, and conserve scarce resources for the rest of the tribe. The human species is estimated to have killed 10 to 15 percent of its born children[13]. Plus, infant mortality rates from natural causes were so high that babies were often not officially welcomed into the community until months or even years after birth, when their survival was more assured[14]. Of course, this is not an advocacy of infanticide. I'm simply saying that personhood, or the point at which one becomes an "official" human being, is a value judgment made by society according to social custom and necessity. It is a social construction incapable of empirical proof. Generally, modern industrialized societies find birth to be the most convenient and logical place to assign personhood, because that's where a person starts an independent existence, but perhaps also because of our low infant mortality rates. Even so, babies do not have an established social identity to the same degree as older children or adults, probably because of their still-undeveloped human abilities and potential.

Is a Fetus a Human Being Physically?

The normal meaning of human being implies a physical body of a certain size and shape with common attributes (excepting disabilities). Early embryonic forms do not share basic commonalities that define us as human beings. For example, zygotes and blastocysts are barely visible to the naked eye and have no bodies, brains, skeleton, or internal organs. Are they materially substantial enough to count as human beings? Fetuses cannot breath or make sounds, and they cannot see or be seen (except by shadowy ultrasound). They absorb nourishment and expel waste via an umbilical cord and placenta, not via a mouth and anus as do all other human beings. Further, fetuses are not just miniature babies. At various stages, fetuses have eyes on stalks, notochords (instead of spines), fish-like gills, tails, downy fur, distorted torsos, spindly legs, giant heads, and alien-looking faces. In fact, an early human fetus is practically indistinguishable in appearance from a dog or pig fetus. Finally, the fetal brain is not yet capable of conscious thought and memory (which aren't fully actualized until two or three years after birth). But our complex brains are what set us apart from animals and define us as human beings. The brain is the seat of personhood[15].

Considering that the early fetus does not even look recognizably human, cannot engage in normal human perception or thought, and does not have the most basic human body functions, can we call it a human being?

Of course, there are striking physical similarities between a fetus and a newborn, such as well-developed hands and feet at a relatively early stage, and the overall structural form. As birth approaches, a fetus looks more and more like a newborn, until there is no significant difference by about 30 weeks gestation. But anti-choicers focus exclusively on these similarities, while ignoring the differences. For example, a hugely popular anti-choice photograph shows the perfectly formed, tiny feet of a 10-week old fetus held gently between someone's thumb and forefinger. There is no sign of the rest of the early fetus, which barely looks human at all. Anti-choicers try not to use pictures of embryos and early fetuses precisely because they look far less human than later ones (when they do, they usually enlarge them to make the embryo or fetus look the same size as a baby). Even the more commonly-used photos of later-term fetuses tend to deliberately shield from view anything that detracts from human-like qualities, such as the placenta or the oddly-shaped torso. (Also, women and their uteruses are completely erased from all such pictures.)[16]

Are Eggs and Embryos Stable Individuals?

Embryonic existence is very precarious. Zygotes, blastocysts, and embryos have a high failure rate, which throws cold water on the anti-choice claim that every fertilized egg is sacred. Scientists estimate that 55 to 65% of all conceptions are spontaneously aborted in the first few days or weeks of a pregnancy, usually without the woman ever knowing she was pregnant[17]. It's called "fetal wastage." Another 10 to 15% of pregnancies are miscarried in the months to come. Fetal wastage occurs because early embryonic forms have a high defect rate—most early miscarriages are caused by genetic defects in the fertilized egg. This shows that eggs and embryos do not yet qualify as human beings according to Nature herself—at best, they represent tryouts for the human race.

Embryos are capable of splitting into two, to form twins, and may even recombine later[18]. This does serious damage to the idea of unique personhood, and the common anti-abortion belief that a "soul" is infused into a zygote at conception. Do twins share the single soul they got at conception, or is the second twin belatedly given its own soul after cell division? If the latter, which soul is lost if the embryos recombine? These questions are unintelligible if embryos are human beings, but simply moot if they are not.

As mentioned before, we are more than our genes, so the fertilized egg cannot represent a "complete" human being as anti-choicers would have it. We are not yet ourselves at conception. Whatever a pregnant woman eats, drinks, inhales, and does, has a huge impact on the specific human being a fetus will turn out to be. Our brains, personalities, abilities, and physical traits are shaped by our environment as well as by genetics. Further, anti-choicers claim that nothing is added to the fertilized egg except nutrition, but this is a misunderstanding of how embryos develop. The dramatic development that turns a zygote into a newborn is not simply growth—it is a radical, turbulent, and constant metamorphosis, with individual cells reproducing, migrating, and evolving specific functions at specific times. The end result is like a complex symphony by a billion musicians that began with a single, one-note instrument.

Can such a contingent and changeable entity really be identified as the same full and unique human being at every stage?

Life Is a Crap Shoot

Anti-choicers would not be convinced by the evidence in this article, because it doesn't refute their emotional conviction that a fertilized egg represents a real and unique human being, just like themselves. They identify with a fertilized egg (it's where we all came from, after all) and feel horror and anxiety at the thought that they themselves might have been aborted. But life is a crap shoot. If your parents had decided not to have sex the night you were conceived, you wouldn't have existed. If your father had worn a condom, you wouldn’t have existed. Or, you could have been conceived, then miscarried. If you had been aborted, your mother may have had a later sibling who wouldn't have existed without your abortion. And so on. Ultimately, if you hadn't been born, it wouldn't matter to you, the same way it can’t matter to aborted fetuses that they weren't born. The non-existent don’t regret their non-existence, and when the living start worrying about the non-existent, they descend into irrational nonsense.

Moreover, the difference between a fertilized egg, and a sperm and an unfertilized egg, is relatively minor. The sperm and ovum each represent the potential for a human being. But men release billions of doomed sperm over a lifetime, and virtually all of women's thousands of eggs go to waste. The number of potential, unique human beings forever lost to the world is astronomical, and although our sheer luck at being alive seems miraculous, it is pointless to lose sleep over such matters—and even more pointless to oppress half the world's population just so a few more of these gazillion potential human beings can exist.

This is not to say that human life doesn't have value. Of course it does, but only the value that we ourselves bestow on it—in biology, life is cheap, life is wasteful, and death is vital. Nature does not value humans any more than worms, and in all species, vast numbers of eggs and seeds don’t stand a chance of reaching maturity[19]. Life has been cheap throughout human history too—it's only modern medicine that has allowed us to keep most of our babies alive for the first time. Why shed futile tears over spilt milk and the biological facts of life? Instead, let's focus on protecting the rights and improving the quality of life of born human beings.

Conclusion

Despite the potential that a fetus has for becoming a human being, and its similarities to a human being, we cannot say that a fetus is a human being. A fetus resides in a legal and social no-man's land, where rights and personhood can have no force or meaning, unless women are kept thoroughly oppressed. Plus, there are many significant differences between a born human being and a fetus, which creates reasonable doubt as to its status. Because there can be no consensus on the matter, the value accorded to a fetus is a subjective, personal matter. Individuals, not society as a whole, must choose what the status of a fetus should be, based on their personal beliefs, morality, and circumstances. And ultimately, this choice belongs only to pregnant women.