LAW JUNE 23, 2011
by Elizabeth Price Foley
Harvard University Press, 312 pp., $29.95
In eighty years or so, the average American goes from blob to person to blob. The middle phase of this continuum jangles with the bells and whistles of personhood—rights, interests, human dignity, legal protections, the works. The blobs are, at one end, an invisible bunch of cells and, at the other, a mass of putrefying flesh material. The blob-person and person-blob transitions give ethicists, legislators, and judges a great deal of trouble. How does the law keep up as the initial blob advances to human being, and then the human being degrades to blobness?
In an earlier era, perhaps, things were simpler—you were either alive or dead, though the status of the fetus has always given people trouble. Today, science has broken down the blob phases into minute intervals: conception, the development of the embryo, its attachment to the uterine wall, the emergence of electrical activity in the fetus’s brain, viability, birth; and then, on the other end, the gradual petering out of brain activity. The distinctions matter. Killing a human being is murder; discarding unwanted cell tissue is not.
Familiar culture-war controversies have erupted over these issues. The law embodies uneasy truces and compromises, and, as is always the case, contains ambiguities and inconsistencies; and state laws vary a great deal. But a rough logic has emerged. The gestational blob gains stronger legal protections as it ascends the ladder of development. Sperm, eggs, and embryos lack rights; their owners enjoy the power to control how they are used. Fetuses do better. A woman may not abort the fetus late in pregnancy without good reason, such as risk to life or health, and a stranger commits a crime by assaulting and killing a fetus because the fetus has stronger rights than the stranger does. But the assaulter is not guilty of murder unless the fetus, in an odd turn of the law, manages to get born before it expires from its injuries. A partially born child enjoys stronger rights still.
Death poses another set of challenges. In the old days, death meant that a person stopped breathing and his heart failed; now this is known as cardiopulmonary death. But when new technology made it possible to animate the heart and lungs in a person incapable of “waking up,” brain death was invented. Brain death enabled surgeons to carve off organs from people deemed alive under the cardiopulmonary definition, but it threw up a new set of problems. Some apparently brain-dead people would regain consciousness; technological advances later revealed that the brains of apparently brain-dead people often threw off occasional sparks—raising the question, how much brain functioning do you need to be alive? Or, if you wish, how much brain functioning does a person need for it to be wrong to kill him? Cryogenics enthusiasts insist that technicians will be able to reanimate a cryogenically preserved corpse by defrosting it. If someone destroys such a corpse, is that murder? If not, is it a wrong at all? The destruction of the corpse of a person disappoints that person’s original plan to reoccupy his body after a temporary vacancy, but prosecution of the wrongdoer would pose problems of metaphysics for which legal training leaves one sadly unprepared.
Then there is the question of suicide, the refusal of unwanted life-preserving medical treatment, physician-assisted suicide, and euthanasia. Some countries permit euthanasia—the killing of people with severe medical problems, including infants born with horrendous birth defects which condemn them to a short miserable life. In the United States, all states tolerate suicide; two states tolerate physician-assisted suicide; and no states permit euthanasia. The Supreme Court has recognized rights to abortion, contraception, and (obliquely) unwanted life-sustaining medical treatment, but not to assisted suicide. For reasons known only to the justices, a woman’s interest in abortion trumps contrary state law but a person’s interest in ending his life does not, unless he can do so by declining medical treatment. Interests pile up on both sides of each question; it is hard to understand why the Court balances them as it does.
These grim topics saturate Elizabeth Price Foley’s book. Foley reviews the ethical debates surrounding these issues, but she focuses on the law. Judges and legislators have struggled to define life and death, and to establish people’s rights at both ends of the spectrum. Foley’s workmanlike description of the law will be helpful for those interested in the topic, but the book suffers from the lack of a crisp argument.
If Foley advances a theme, it is that legal decisionmakers have struggled with definitions. They have avoided defining when life begins, instead identifying a number of stages during which the developing pre-human accrues greater levels of legal protection. Death, by contrast, enjoys a relatively clear definition: cardiopulmonary lapse or the cessation of brain activity, whichever occurs first, although there are endless difficulties in defining the precise moment of death because people tend to fade away and the possibility of fading back in is often difficult to rule out. The needs of gravely ill people awaiting replacement organs generate pressure for an early definition of death, so that organs can be extracted and installed before they rot. This is troublesome, but it is not clear that a real problem yet exists.
Foley thinks it significant that the law defines when death occurs but avoids a single definition of when human life begins. The reason, she says, is that people care more about beginning-of-life issues than end-of-life issues. People harbor complex and often inconsistent moral intuitions about the proper treatment of the fetus, and moral questions about the rights of women and the state’s interest in the fetus have become tangled in definitional questions about when human life begins. By contrast, debates about when death begins turn on relatively technical issues. Still, end-of-life debates can be as polarizing as the abortion debate, as illustrated by the ideologically charged controversies surrounding the attempts by family members to cut off life support for Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo. End-of-life and beginning-of-life controversies turn on the same issue—whether law should symbolically affirm the priority of human life by defining it broadly and preserving it generously, or should give priority to personal autonomy when people make choices that conflict with the preservation of marginal life forms.
These debates flicker between ethical disputes and ontological ones. If one opposes abortion, for example, one can make two functionally identical arguments: that human life begins at conception, and therefore abortion is murder; and that even if human life does not begin at conception, abortion is a wrongful act because the fetus enjoys a right to life. The abortion rights proponent can respond in two parallel ways: that human life does not begin until viability or some later stage, and therefore abortion prior to that stage is not murder; and that even if human life does begin at conception, the taking of human life before it possesses feelings, thoughts, autonomy, and so on, is not a wrong, or not a wrong significant enough to justify constraining women’s control over their bodies. These two types of argument amount to the same thing, but different rhetorical styles appeal to different types of people, and so they have been scrambled together, with unfortunate consequences for clarity in the law.
In the case of abortion, the treatment of embryos, and other beginning-of-life issues, the law has refused to take a position on the ontological question of when life begins because people believe that a settlement on the ontological issue will affect the outcome of the ethical debate. That hasn’t happened for the end of life. The ethics of assisted suicide does not turn on whether a person dies when his brain stops emitting electrical signals or when his heart stops pumping blood. Defenders of the “right to die” have not yet argued that a person in a persistent vegetative state is not really alive, or is not really human, preferring instead to argue that any harm from killing such a person is tolerable if that person has signed a living will or burdens family members with the financial or emotional cost of his continued existence.
Foley’s book is essentially a primer or textbook on these legal issues of life and death, suitable for ethicists interested in learning about the law and for lawyers interested in learning about ethics, but lay readers will find the legal analysis slow going. Foley ably lays out the moral arguments and legal disputes, and persuasively criticizes poorly reasoned judicial opinions, but the book would have benefited from a stronger perspective and more distinctive voice.
Eric Posner is a professor at the University of Chicago Law School.