DEBATING THE MORAL STATUS OF HUMAN EMBRYONIC STEM CELLS

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1 CHAPTER 3 DEBATING THE MORAL STATUS OF HUMAN EMBRYONIC STEM CELLS As we have seen earlier that the primary ethical issue at the heart of debates over hes research revolves around the moral status of the embryo. Both the proponents and the opponents of human embryo research maintain that in order to resolve the compelling issues surrounding the ethics of embryo research, the moral status of the intended research subject the human embryo must first be determined. The expression moral status has almost become a technical term within several disciplines for the following : that something (human, animal, plant, etc.) has some form of moral status implies that we as moral agents have ethical obligations towards it. Those who have moral status must, from the viewpoint of agents, be protected by certain ethical norms. When we raise the problem of the moral status of human embryos, we are concerned on the one hand with what rights they have to the protection of life, body, health etc., and on the other hand what obligations moral agents have towards them in the form of preserving these goods. A survey of the relevant literature reveals a common focus on questions of moral status : Is the human embryo truly human?, Is it a person?, Does it have a right to life, or is it merely due respect? ; Can it be destroyed with impunity, or is its destruction intrinsically wrong? There are a number of legitimate but incompatible views on the moral status of the human embryo. At one end of the spectrum of beliefs, some view the human embryo as just a collection of cells no different from skin cells or other cells in the body. According to this belief, there is no need to treat these cells differently than other cells and research on them is permissible, provided the donors of the cells give proper consent. At the other end of the spectrum, some believe that the human embryo is a person with the same moral status as a baby, child or adult and consequently, with all the rights those people possess. According to this belief it is not possible to condone experimenting on embryos, just as we do not experiment on living persons without their consent. This leads the opponents of embryo experimentation to believe that the embryos from the blastocysts stage have a right to life, human dignity and thus there should be respect towards a human embryo. 67

2 Between these two extremes is a middle position which holds that it is possible to believe both that life begins at conception and that embryo research is permissible. Many people, cultures and religions believe that while human life begins at conception embryos are not people the blastocyst and embryo are cellular structures with the potential to become people, if they are implanted and survive pregnancy and birth. In this view however, embryos do not have the same moral value as living people, and do not possess the same rights. This intermediate view regards embryos as special in a way that demands respect such that they are not wasted or used frivolously and have limits and restrictions on their use. CAN WE ASCRIBE FULL MORAL STATUS TO HUMAN EMBRYOS? Most prominent ethicists, philosophers and commentators dispute that embryos should be considered persons or human beings in any serious sense. To the overwhelming majority of the biologist community an early embryo, prior to development of the primitive streak or implantation, is a ball of cells, not a human entity. The fact that every person began life as an embryo does not prove that embryos are persons. For example, although every oak tree was once an acorn, it does not mean that acorns are oak trees or that we should treat the loss of acorn as the same kind of loss as the death of an oak tree. 1 This explains why we would treat them differently, seeing the wanton destruction of the latter as much more serious than that of the former. 2 In one of his contributions on the subject of human embryo research held at the Ciba Foundation in November 1985, Bernard Williams observed that : An embryo which, if all goes well, will develop into a human being is certainly a human embryo, but that does not imply that it is itself a human being. 3 It is true that something will develop into a human being does not imply that it is itself a human being. On the other hand, it implies that the embryo is not yet a human being, for, a human embryo is no more than an embryo which, if everything goes well, will develop into a human being. Actually we do not ascribe to items which merely have the potentiality of developing into a mature form of a given species the term appropriate to that mature form. The presumption is that the 1. Sandel M. J. Embryo ethics The moral logic of stem cell research. New England Journal of Medicine 2004; 14 : Cooney, William. The Fallacyof All Person-denying Arguments for Abortion, Journal of Applied Philosophy 8 (1991), p. 162, and Phillip E. Devine,Ethics of Homocide(Notre Dame, 1990), p Williams, Bernard. Types of moral argument against embryo research, in : G.Bock & M.O Connor (Eds) Human Embryo Research : yes or no? (London,Tavistock), p.192. (1986) 68

3 proper form of a human being, or indeed of the member of any species, is one which is found in the mature adult member of the species. Becoming a human being is, on this view, a matter of coming to acquire a certain form : an embryo is a cell, and then a collection of cells, which gradually takes on human form. 1. PERSONHOOD OF EMBRYO 1.1 BIOLOGICAL CONSIDERATION The argument that an embryo is a person right from the start does not seem to be consistent with the biological development of an embryo. Fertilized human eggs are merely parts of other people s bodies until they reach a certain autonomous or independent developmental stage. Accordingly they have no independent moral status at all, and are merely the property of the people from whose body they came. In IVF technique, the embryo is transferred to a uterus when it reaches the 4, 6, or 8 cell stage, some 48 to 72 hours after conception. The further development is the cell clusters of the morula and then blastocyst stage of development. At this stage the simple cellular aggregate of the fertilized eggs start to show a central cavity surrounded by a peripheral cellular layer with some distinguishable inner cells. The blastocyst stage marks the developing capability to interact with maternal cells of the uterine lining which is essential for implantation and later development to occur as well. At 6 to 9 days the developing cellular mass becomes able to implant or embed in the uterine wall as the placenta, jointly derived from embryonic and maternal cells, begins to form. 4 So implantation marks the beginning of pregnancy as a maternal state. At this point the embryonic mass has a clearly distinguishable outer cellular layer which plays a major role in the implantation process. It is as yet underdeveloped inner cell mass and the source of the embryo proper. When the blastocyst is well established in the uterine wall, the inner cell mass reorganizes into two layers that make up the embryonic axis, along which the major organs and structures of the body will be differentiated. The only respect due to these blastocysts is the respect that should be shown to other people s property. 5 At the time of completion of implantation the cells in the embryo start to differentiate in a process called gastrulation. By 19 days, three layers of cells that are going to remain separate for the development 4. Grobstein, The Early Development of Human Embryos Journal of Medicine and Philosophy. 10 : , Richard M. Current issues brief No. 5, : Key ethical issues in embryonic stem cell research. Department of the Parliamentary Library, Australia,

4 of different tissues are forming. The neural tube starts to form, and a primitive circulation system is forming by the end of four weeks. The formation of the primitive streak occurs at 14 days, and is a major sign of ontogeny. This concept of individuality is not only shared by scientists, such as McLaren, and theologians such as Mahoney or Ramsey (Ford 1988), but also by the Warnock Committee (HMG 1984). This is why the 14 day stage is important in government guidelines in several countries. Guidelines developed for the use of embryos in the development of stem cell lines have generally included a limit of 14 days, or alternately the development of the primitive streak, beyond which the blastocyst cannot be kept alive and used for research. This means that the blastocyst can be used for research purposes up to 14 days, but not after that time. Embryological studies now show that fertilization is itself a process (not a moment). Therefore it can be argued that this biological aspect is ethically relevant for the kind of protection the embryo deserves will automatically differ from a human embryo before 14 days and an individual human life after this limit. Since an embryo during the first two weeks of its existence is not an individual human life, it is not sufficiently individualized to have the moral weight of personhood. Actually, individualization has no relevance to the moral status of human life before and after the 14-day the only difference is numeric. By the end of the 4th post-conception week, the major organs are more fully formed and cardiovascular circulation has resumed. By the 8th week, an anatomically recognizable human miniature exists, displaying very primitive neuromuscular function but still extremely immature on both structural and functional basis. The higher parts of the brain are unable to show any electrical activity or nerve cell connections until 12 weeks after conception. So in this way, the embryo grows to a fetus which fulfill its development in the gestation and ultimately born as a baby. As there are different stages of human development in terms of some order of importance, the argument of viewing embryo as a person is not justified Robertson, John A., Children of Choice : Freedom and the New Reproductive Technologies, Princeton University Press. (1994) 70

5 According to K Dawson, 7 when assessing the claim that fertilization establishes full moral status, several facts should be kept in mind : (1) Given suitable envrironmental conditions, development may sometimes commence without fertilization occurring (parthenogenesis) (2) The genotype of any individual may not be that formed at fertilization. (3) Development and differentiation after fertilization result in changes to the genetic complement of the prenate. (4) Environment is a potent force in the course of development both prenatally and postnatally. (5) The formation of a single zygote at fertilization may be the forerunner of the development of multiple individuals that may or may not be genetically identical. (6) Successful completion of fertilization in no way assures development through to birth or even the commencement of embryo development. 1.2 PHILOSOPHICAL CONSIDERATIONS 1.21 DIFFERENT SENSES OF THE WORD PERSON From a philosophical and theological standpoint, one has often referred to the fact of being a person, to personhood or personality, as a criterion for deciding whether a human life has an unique value and the right to life and protection. Development from a fertilized egg into a baby is a continuous process and any attempt to pinpoint when personhood begins is arbitrary. Science now indicates that fertilization is a twenty-four to thirtysix hour process, not a moment. Even if one cannot point to an exact black and white dividing line in human development, it is still reasonable to point to the fact that wherever the transition occurs, embryos do not have the physiological, emotional, intellectual properties that we tend to centrally associate with personhood Dawson Karen. Fertilisation and moral status : a scientific perspective. Journal of medical ethics, 1987, 13, Richard M. Current issues brief No. 5, : Key ethical issues in embryonic stem cell research.department of the Parliamentary Library, Australia,

6 The criteria for personhood are notoriously unclear for different people define what makes a person in different ways. From Descartes onwards there is a strong Psychological and Utilitarian approach to the definition of personhood. In some cases, one has identified personhood with being human. In other cases, one has distinguished between being a person and being a human. The philosophers point out the difference between human being and persons human being a biological concept whereas the concept of person is primarily, if not wholly, psychological or moral concept, and grounds for its application largely, perhaps exclusively concern the rational capacities of the would-be persons or his / her moral status. Michael Wreen holds, human being is a term which, in everyday discourse, can mean either human being or person. 9 For clarity, it is important to distinguish two senses of the term person. One sense is normative and refers to a moral status that we might call full moral standing. It involves having a substantial set of rights, including a strong right to life. A second sense is descriptive and refers to the possession of self consciousness, which typically is accompanied by other attributes including use of language, capacity for rational thought and action, ability to profess values,and moralagency. Those who are self-conscious are persons in both senses of the term. Bonnie Steinbock (Life before birth : The Moral and Legal Status of Embryos and Fetuses, 1992, pp. 5354) has suggested the terms normative and descriptive personhood, respectively, to refer to these two senses, and I shall adopt her terms. Clearly, embryos, fetuses, and infants are not persons in the descriptive sense. A central question,therefore, is whether there is any basis for saying that they are persons in the normative sense. In addressing this question, it is worth noting that there are two ways in which normative personhood status for an individual could be defended either as intrinsic or conferred moral standing. Moral standing is intrinsic if it exists because of some inherent characteristic of the individual. This is the type of moral standing possessed by self conscious individuals; persons in the descriptive sense are also persons in the normative sense because of their inherent characteristics. By contrast, it is conceivable that some individuals should be regarded as having moral status not because they have intrinsic moral standing, but because it is justifiable to confer moral status upon them. 9. Wreen M. Abortion: The Extreme Liberal Position. The Journal of Medicine and Philosophy 12 (1987),

7 Various approaches have been taken in trying to establish a normative personhood status for embryos and fetuses based on intrinsic characteristics. To lay some ground work for the view I am going to defend,it is necessary to review briefly the main approaches that have been taken. This will help us to understand not only their shortcomings but the insights they provide. In ordinary language we identify persons with human beings, but the notion of a person is not coextensive with the notion of a human being. More specifically, whereas an individual counts as a human being if it belongs to the species Homo sapiens, it counts as a person not by virtue of species membership, but of the capacities it possesses. That means that there are cases of human beings who are not persons and possibly cases of persons who are not human. It is arguable that human infants and human adults in persistent vegetative state do not have the capacities required for personhood, whereas forms of intelligent extraterrestial or artificial life and some non-human primates might satisfy the criteria for personhood. In her classic article, On the Moral and Legal Status of Abortion, 10 Mary Anne Warren argues that the conservative view on abortion rests on a confusion between two distinct senses of human being. One sense is biological or genetic. It refers to the species to which an entity belongs. Human fetuses are unquestionably human in the biological sense. However, it does not follow from their genetic humanity that they are human in the other sense, the moral sense, which refers to their moral status and rights. Why should a biological category confer a special moral status? The belief that humanness does imply such a status and rights (human rights) stems from a failure to distinguish between the two senses. To avoid this confusion, Warren suggests that we reserve the term human for the biological or genetic sense, and use the term person to refer to beings who are full-fledged members of the moral community, possess moral rights-in particular, the right to life. I am also in support of this view for this enables us to avoid begging the question whether a human embryo or fetus is a person with a right to life. To Tauer, 11 the term person refers to the sorts of beings who are moral agents, who have moral rights, and who are to be respected simply because they exist. They are the beings who constitute the 10. Warren, M.A., 1973, On the Moral and Legal Status of Abortion, Monist, 57: Tauer, Carol A. Personhood and Human Embryos and Fetuses. The Journal of Medicine and Philosophy 10 (1985)

8 moral community and who, in Kant s words, have dignity as ends in themselves. If there were no such beings, there would be no moral order, hence no moral questions. Kantian and utilitarian traditions converge upon a cognitive capacity standard for full moral status as a person. Personhood for Kant denotes a form of value beyond all estimation; it is absolute, priceless, does not admit of degrees and is possessed equally by all rational beings and only by rational beings. Autonomy functions as the threshold condition for moral status beyond which variations in cognitive competence are irrelevant. The capacities through which autonomy is exercised may come in degrees, but once someone acquires the ability to consider alternative futures and make rational judgments about the best course of action, he or she is capable of autonomous choice in a form beyond the reach of non-rational animals. This ability to make choices guided by normative reasons is what enables persons to act as moral agents and to take moral responsibility for their conduct as free and equal members of a Kantian kingdom of ends. The intrinsic property of rational agency, the Good Will in Kant s terms, is the intrinsic value that entitles persons to the highest form of moral status. Moral status is based on certain psychological characteristics, such as sentience, consciousness, self-consciousness, the ability to use language, rationality, and moral agency. These are typical of members of our species, but not necessarily limited to them, Moreover, there seem to be members of our species who lack these person-making characteristics, such as anencephalic babies and patients in persistent vegetative states. They are biologically human, but not persons, and thus do not have the moral status reserved to be persons INDIVIDUALITY, PERSONHOOD AND EMBRYOS Individuality holds an important position in the concept of person. Individuation is a developmental event marking the point beyond which one and only one individual can result from subsequent embryogenesis and fetal development. The argument from individuality states that a human embryo should be treated as an individual human life from the time when it is clear that twinning is no more possible. This is supposed to be about 14 days after fertilization. According to this view it is up to this time not possible to securely identify an embryo as an individual human life for embryos at early stages lack individuation. This is evidenced by research demonstrating that, up to at least the 8-cell stage, one or more blastomeres can be removed from the embryo (eg, as for preimplantation genetic diagnosis [PGD]) and the remaining blastomeres can still produce a complete human being. Also, from the initial 74

9 stages of cell division until the formation of the primitive streak, the embryo is capable of dividing into more than one entity (i.e., twinning). Only after this period has differentiation of embryonic cells advanced to the point that separation can no longer result in two or more individuals. 12 So, until about two weeks after conception, an embryo can divide into two and, in cases of fraternal twinning, two embryos can fuse into one. Arguably, then, the single-cell zygote is not uniquely individuated in the sense that whether it, and it alone, will develop into a single human organism has not determined. If not uniquely individuated, the zygote is not yet a unique member of our basic kind : human organism. In 1988, Salesian priest, theologician, and philosopher, Norman M. Ford, has suggested that the embryo be given full moral status at the primitive streak stage because of the phenomenon of individuation. 13 Ford focuses his thesis on the concept of a living ontological individual, whose activities must have an intrinsic directiveness toward the achieving of set goals or purposes within the organism. (Ford argues that the criteria for the presence of a human individual is when the living individual has the inherent active potential to develop towards human adulthood without ceasing to be the same ontological individual. He places this around this time because of implantation and the formation of the primitive streak.) But this, in his judgement, is not yet accomplished as long as the cells of the zygote are in their totipotential state, or while twinning is possible. The process of acquiring a distinct genetic identity is not complete until the possibility of twinning or recombination has occurred or at approximately fourteen days after fertilization at or near, the time of implantation and the emergence of the primitive streak. It is only at the primitive-streak stage that ensoulment can thus take place. Thus, a human embryo becomes worthy of protection at around day 14 after the fertilization. Proponents suggest the primitive streak the proto-spinal cord that appears on the fifteenth day after conception, when the embryo implants in the uterine wall could act as a bright line separating ethical and unethical research. Explicitly supporting Ford, Thomas Shannon and Allan Wolter also stress the importance of irreversible individuation as a precondition of personal human life : An individual is not an individual, 12. McCormick RA. Who or what is the preembryo? Kennedy Inst Ethics J 1991; 1 : Grobstein C. Becoming an individual. In : Science and the unborn. New York (NY) : Basic Books; p Ford NM. When did I begin? Conception of the human individual in history, philosophy, and science. New York (NY) : Cambridge University Press;

10 and therefore not a person, until the process of restriction is complete, and determination of particular cells has occurred. Then, and only then, is it clear that another individual cannot come from the cells of this embryo. 14 Richard McCormick likewise contends, in a clear and orderly article that the moral status and specifically the controversial issue of personhood is related to the attainment of developmental individuality (being the source of one individual). 15 This contrasts with the view that holds that personhood occurs earlier, at the point of genetic uniqueness. For Anne McLaren, the early embryo is not yet a human being, because it has not yet become an individual human being. In her words, To me the point at which I began as a total whole individual human being was at the primitive streak stage. 16 She gives a reason that : If one tries to trace back further than that there is no longer a coherent entity. Instead there is a larger collection of cells, some of which are going to take part in the subsequent development of the embryo and some of which aren t. 17 McLaren prefers to use the term pre-embryo for the collection of cells which constitutes human life up until the formation of the primitive streak. Her justification seems to incorporate two separate points : (a) that the pre-embryo does not have the wherewithal to be counted as an individual and more especially (b) that it does not stand in the required relationship to the subsequently developing individual for it to be counted as the same individual. Again, so far as the internal constitution of the pre-embryo is concerned, it is not finally decided whether there will be one fetus or two until the primitive streak stage. In that case, if the pre-embryo is not determinately either one or two human beings, how can it be any number of human beings at all? But it remains to be answered that how can something which is a mere collection of cells be the same individual as something which is not a mere collection of cells? As discussed earlier, that the appearance of the primitive streak is seen by some as marking the onset of individuality. The primitive streak appearing at implantation marks a shift of developmental focus. It also signals an integration of embryonic cells sufficient to preclude twinning. With the appearance of the primitive streak and implantation, the individual identity of the embryo has become stable. 14. Thomas A. Shannon and Allan B. Wolter, O.F.M., Reflections on the Moral Status of the Pre-Embryo, TS 51 (1990) , at McCormick, Richard A. Who or What Is the Preembryo? Kennedy Institute of Ethics Journal 1, no. 1 (1991) : McLaren A. Ethical and social considerations of stem cell research. Nature 2001; 414(6859) 17. Ibid 76

11 The Warnock Committee 18 report is relevant here. The Warnock Committee was established to report on the ethics of in vitro fertilization and of experimentation on the human embryo. Warnock concludes that the provisions of some barriers are what the very existence of morality depends on. For Warnock, the test of where the barriers should be placed must ultimately be what kind of society can we praise or admire? In what sort of society can we live with our conscience clear? The main conclusion of Warnock as it affects the argument is that, the embryo of the human species should be afforded some protection in law and that the protection it should be afforded should be first, that anyone handling or doing research on embryos should be licensed and experimentation as is licensed should not be permitted beyond fourteen days after fertilization. The only positive reason given by Warnock for setting the limit on research at fourteen days is that it is at this point that the primitive streak occurs and this is the latest stage at which identical twins occur and hence is the first point at which it is clear that the number of potential human beings present are either one or more than one. Dr. West argues, The bright line [that] I would argue would be a wise one for us to draw is primitive streak. Primitive streak, I think, is an effective line to draw and say that is the beginning of a human being and prior to primitive streak we should use some other terminology because this is not an individualized human being. 19 West argues that the primitive streak provides a division between an embryo and a pre-implantation embryo, which is a group of cells with human DNA but not a human person. Green affirms this claim about the primitive streak, but he argues that the division is natural, not manmade. According to him, And what our point is, is there s such a convenient line, a bright line, that we could draw which is drawn for us by nature itself, it s called primitive streak. It s the first step towards the production, the beginnings of a human life, a human life, as opposed to what was cellular life. 20 Green argues that the primitive streak divides human life from cellular life, but Green transforms a social determination of when life begins into a biological fact. 18. Warnock, M.et al. : Report of the Committee of Inquiry into Human Fertilization and Embryology, Her Majesty s Stationery Office, London. (1984) 19. Cloning Special hearing : Hearings before the Subcommittee on Labor, Health and Human Services, and Education, of the Senate Appropriations Committee, 107th Cong., 1. (2001) 20. Green R M. The Human Embryo Research Debates. Bioethics in the Vortex of Controversy. Oxford : Oxford University Press. (2001) 77

12 Bedate and Cefalo note that some embryos with normal genetic constitutions fail to develop into fetuses precisely because they lack complementary external information, and become nonpersonal biological entities such as tumors or hydatidiform moles. They therefore conclude that although the zygote may have value, the status of the zygote cannot be the same as that of the person it will become. 21 Giving the Bedate and Cefalo proposal immediate philosophical reinforcement, Thomas Bole contends in the same issue of the same journal that the empirical facts have now falsified the metaphysical claim that the zygote is a person SELF-AWARENESS, PERSONHOOD AND EMBRYOS Another crucial part of our person is self-awareness, or personal identity. Personal identity is important, so that even if an exact replica was made (Gillet 1987) we would have two persons, and if the original died,they would still regard themselves as dying. Our experience of the physical world is centered upon ourselves, and specifically around the sites of our senses. Each individual may reach a point where they are self-aware (Harre 1987). Though this view has important extensions, as nonhuman animals can be self-aware, and also higher apes can interact with humans in this way. For instance in experiments using chimpanzees, they can be taught sign language and then they can create short sentences in conversation. Beings can also be treated as persons in a linguistic way, by names, and by ascribing emotions. Parents can do this as they interact with their infants in terms of psychological attributes that they assign to the infant, and we may do this to domestic animals too. Peter Singer argues that we should reject the view that a human zygote or early human embryo is a distinct human individual. 23 In his view, the identity thesis poses serious problems. He takes up the issue of monozygotic twinning where one human embryo splits into two human embryos with the same genetic code. Concerning this procedure he then asks the following questions : Which one of the two human embryos is the original one? Is either of the two human embryos the original one? Is it even possible to know? How are we to understand an early human embryo as a distinct human individual in 21. Green R M. The Human Embryo Research Debates. Bioethics in the Vortex of Controversy. Oxford : Oxford University Press. (2001) Thomas J. Bole,III, Metaphysical Accounts of the Zygote as a Person and the Veto Power of Facts, Journal of Medicine and Philosophy 14 (1989) , at Peter Singer, Unsanctifying Human Life, ed. Helga Kuhse (Malden: Blackwell Publishers Ltd., 2002)

13 light of the possible formation of a chimera? If during sexual intercourse, two different human embryos are formed with separate genetic codes and the two of them combine to form only one, how can it be that there was originally one distinct human individual? As Singer asks, who is the baby: Mary or Jane, Mary and Jane, or Nancy? 24 A person is generally referred to as someone who is rational, capable of free choices, and is a coherent, continuing and autonomous centre of sensations, experiences, emotions, volitions and actions, these are what may be called the characters of a person. The word person, has two ideas. The Anglo- Saxon reductionist philosophy produces the idea of a person as something which acts in certain characteristic and identifiable ways. The other philosophical approach, has its roots in ancient Greek thought which has had a powerful influence on Christian thinking, goes behind the observable phenomena and activities to identify their sources, the nature of these sources and the relationships between these natures (Mahoney 1984). It stresses being more than behaving. The Greek idea is present in Christian speculation and language about the human soul. When a human possesses a soul they are a person. In Christian terms a human person is someone made in the image of God, which is not dependent on a criteria of actions. A human person may be more than human cells with the potential to become a human person (Mackay 1979, Jones 1985). We would all agree that the human person is entitled to protection and respect. No human person is property, and all have equal status RATIONALITY, PERSONHOOD AND EMBRYOS The definition of person is to some extent controversial but there is widespread agreement that the capacities required for personhood include rational thought and self-consciousness. As full members of the moral community, moral agents as well as recipients of moral action, persons must be able to consider reasons for one choice rather than another, and thus have rationality, and they must be able to recognize and assume responsibility for their own actions, and thus have a sense of self, or selfconsciousness. A definition of personhood is a core concept and is often called the strict or proper sense of person, a sense to which other meaningful usages must be related. 25 There are (at least) three common uses of the term rationality that could be relevant to the notion of personhood. An individual might be regarded as (instrumentally) rational if it can engage in 24. Peter Singer, Unsanctifying Human Life, ed. Helga Kuhse (Malden : Blackwell Publishers Ltd., 2002) Engelhardt, H.T., Jr.:1974, The ontology of abortion, Ethics 84, pp

14 means-end reasoning, that is, if it can identify the means by which its ends can be fulfilled, and pursue those means. Further, an individual might be regarded as rational if it can think well, that is, if the reasoning in which it engages does not violate any fundamental principle of logic. Finally, we have the most demanding notion of rationality which requires not just the conformity of an individual s behaviour to given standards (of instrumental rationality, good reasoning etc), but the responsiveness of the individual to such standards. The rational being, in this third more demanding sense, is the being which has the capacity to follow norms of rationality because it appreciates their normative force. In the context of the elucidation of personhood, the capacity for responsiveness to norms is required. This capacity underpins moral agency, which is another criterion for personhood in some contractualist frameworks. 26 According to Aquinas, a person includes in its meaning the most dignified nature : reason. If the embryo is a person, it must possess somehow some relevant kind of rationality. To be a person is to be capable of rational thought. But an embryo as such never manifests rationality, has never manifested it and will never manifest it. Even if we accept human embryos have a rational nature, but that nature is not fully realized until the embryos are able to exercise their capacity to reason SELF-CONSCIOUNESS / SENTIENCE, PERSONHOOD AND EMBRYOS The ability to experience pain, the beginning of brain activity, consciousness, the ability to reason or the like are signals that personhood has been achieved. Embryos, particularly the very early preimplantatipon blastocysts involved in stem cell research, 27 do not, for instance, have consciousness, individuality, the ability to reason, or the ability to form courses of action in life and to choose between them. Protection should be given to human embryos once they have the capability to feel pain, display neural activity, and basic self-awareness, some aspects of human form, or the ability to function autonomously. Since these abilities arise much later in pregnancy or human development, those who hold these views argue that the pre-implantation embryo is not entitled to the same moral status and protection as are children and adult humans. Those working in the utilitarian tradition emphasize self-consciousness as an alternative threshold condition for the range property of personhood. When it comes to self-consciousness, it is important to 26. Rawls, John. A Theory of Justice. Cambridge:Harvard University Press, Donna Dickenson, Property and Women s Alienation from Their Own Reproductive Labour, Bioethics, vol. 15, no. 3,

15 provide an account of the differences between (i) the capacity to have conscious experiences and react appropriately to external stimuli and (ii) the capacity to have a sense of self, that is, an awareness of one s own existence in the past, in the present and in the future and of one s own uniqueness. The former capacity is often called sentience. Many philosophers hold that sentience is central to a determination of moral status. Sentience is the capacity to have feelings. In the world, all and only sentient creatures can have pleasant or unpleasant experiences which are plausibly regarded as the most basic foundation for interests. Insofar as all and only beings that can have interests can be harmed or benefitted in ways that seem morally important, sentience is a reasonable basis for assigning moral status. It is something that we as normal humans share with many non-human animals. Some will object that we cannot base moral status on consciousness unless we have a definition of consciousness, but there does not seem to be any satisfactory, non-circular definition. Acknowledging the problem, David Bonnin says, It is tempting to say that to be conscious is to be aware of something, for example, but then awareness will surely have to be defined in terms of being in a conscious state. 28 What follows from the absence of a definition of consciousness? Not much, Bonnin argues. It is not as if we had no idea what consciousness is. He writes : As Nagel famously put it, using an expression that has since become ubiquitous in discussions of the subject, an organism has conscious mental states if and only if there is something that it is like to be that organism-something it is like for the organism." 29 There is a morally relevant difference between an organism that is conscious and an organism that have a stake in anything; only beings that can have a stake in something can have interests of their own. The morally relevant difference between conscious and non-consciousness beings is that conscious beings have interests and a welfare of their own, compounded out of those interests. Non-conscious beings do not have either of these things. The ability to engage in self-aware autonomous choice is an intrinsic property of persons; it makes possible forms of intrinsic value that are inaccessible to non-persons; and self-conscious rational agency is plausibly construed as an extended phase transition in psychological development beyond which individual worth no longer varies. Persons who have achieved a high level of self-mastery, for example, or those who have exceptional intellectual abilities, are not higher life forms nor do they have 28. Boonin, D. A Defense of Abortion. Cambridge University Press, Ibid 81

16 new forms of consciousness. Gandhi and Einstein were extraordinary individuals, but each rightly would insist that he is a person and nothing more. Being a person does seem to be a sufficient condition for full moral status and the embryo definitely is not one. Sentience is only one form of conscious awareness, but it is a very important one. If a being is sentient, that is, it can experience treatment as painful, it has at least one interest : the interest in not experiencing pain. The fact that a being can suffer gives us a reason to treat it in certain ways, and not in other ways. It matters to sentient beings what one does to them, and this is why they have moral claims on us. To take a homely example, it is fine if a child plucks the petals off a daisy while saying He loves me, he loves me not. It is not fine if the child recites the rhyme while pulling the legs off an insect, or the feathers off a (trapped) bird. Steinbock 30 concedes that only sentient beings, of which persons are a subclass, are appropriate candidates for direct moral consideration. According to this point of view, embryos are not persons but they are not like any other bodily tissue either. They should be granted respect as developing forms of human life. So embryos have no moral status but they have moral value and can be granted indirect moral consideration, like trees or works of art. Steinbock argues that human embryos command respect because they represent the beginning of human life, similarly to human remains that command respect as they represent the end of human life. To show our respect for human remains we follow culturally dependent rituals that celebrate the end of a human life. It is hard to establish what obligations the respect for embryos places on us on the basis of their symbolic value. Normal adult humans have the sense of self that is required for personhood. When I see a chair, I have the conscious visual experience of a chair, I am aware of the chair being there and I know what a chair is, I know that a stool and a settee fulfill similar functions, I know how to use a table as a chair (and vice versa), in short I have the concept of a chair. But I can also be aware that I have that experience, that it is me seeing the chair, the same me who ate chapati last night. This is the sense of self that is required for personhood and that allows one to have one s own thoughts or experiences as objects of thought. Typically, persons, as rational and self-conscious beings, have beliefs, desires and preferences and are autonomous, that is,they can act on their own decisions. That is why persons are often defined 30. Steinbock, Bonnie. Life before Birth : The Moral and Legal Status of Embryos and Fetuses. New York : Oxford University Press,

17 in terms of their capacity to decide what they will do in circumstances in which they have a choice and are able to act as moral agents. Even after considering the physiological and behavioural criteria for sentience in embryos and fetuses, there is no agreement on the answer to the question of when sentience begins. The earliest possible time at which embryos might be able to perceive pain sensations is set at around the eighth week of gestation. The embryos used for stem cell research are not older than 14 days, so such research certainly does not involve sentient beings and it should not be constrained by the ethical considerations that apply to research on sentient embryos. It would be permissible if there were clear and important benefits to be expected from the experimental results and if pain were not caused to the embryo. It is found that human embryos to be used in stem cell research do not have the capacity to feel pain because in order for the embryo to be aware of a pain sensation, at least the following anatomical structures need to be in place : (i) sensory receptors capable of responding to a painful stimulus; (ii) nerves to conduct the impulses generated in these receptors to the spinal cord; (iii) nerve fibres within the spinal cord, which transmit these pain impulses to the brain. Behavioural evidence for these structures to be there is the presence of reflex responses as they require the nerves that emerge from the spinal cord to be intact and functional. The nerves responsible for carrying sensations from the skin to the spinal cord develop by the end of the seventh week of gestation (e.g. lip tactile responses have been observed after that time), and the thalamus, to which nerve fibres transmit pain impulses, is said to be functional from the eighth week of gestation. But, the presence of reflex is not itself sufficient for pain perception. On some accounts of sentience in embryos, the formation of all the structures necessary for pain perception appears much later in the timetable of prenatal development, when synaptic connections within the brain are established. This would happen in the third trimester of pregnancy. It may also be argued that it is the formation of the nervous system that is the landmark for the definition of life, since this is then that the possibility of sensation first exists. Up to embryonic day 14, the blastocyst has no central nervous system and, therefore, cannot be considered sensate. If we can 83

18 remove organs from patients who have been declared brain dead but are still alive in some sense in order to save the lives of those who are alive, we can use two hundred-cell embryos as cell donors at the same moral status as brain dead individuals. 31 Michael Lockwood argues, first, that in the event of brain death you or I would cease to exist, even though a living human organism might for a while continue to exist. 32 His second point is that the identity of the individual must be supposed to follow the fortunes of the brain, or at least some crucial part 33 of the brain, rather than of the rest of the body, in an imaginary case where these are supposed to become separated. 34 Identifying the individual that you or I essentially is what we can neither become nor cease to be, without ceasing to exist as a human being, he believes that these considerations force a distinction to be drawn between a human organism and a human, and infers specifically that the individual human being cannot be said to come into existence until the brain is formed. 35 Once again, then, we arrive at the point that the early human embryo is not yet a human being. Thus it may be suggested that a human being cannot be a person before the brain is in his skull and since the embryo does not possess a brain it cannot be a person. But the embryo has all the genetic properties that will initiate the development of the brain. Bernard Baertschi, in his article, The question of the embryo s moral status speaks of three doctrines actualism, dispositionalism and capabilitism to ascertain the moral status of an embryo. But one thing should be kept in mind that Baertschi has already accepted rationality to be the relevant property for personhood, and this rationalism must be an actual property, dispositional property and future oriented property to confer personhood to anything. Bernard Baertschi goes on to evaluate the application of the above doctrines to the embryo s status. For actualism, an embryo cannot be a person because it cannot manifest any sign of rationality and also implies that each time we fall asleep we lose our rationality. But for dispositionalim, we do not lose our rationality when asleep, because it is a dispositional property and one will begin to reason as soon as one wakes up. According to him, P is a person only if she has already put R (rationality) into practice, i.e. actualized it, and is still able to do so. 31. Fishbach GD, Fishbach RL Stem cells : science, policy and ethics J Clin Invest 2004; 114 : Lockwood Michael. When does a life begin-in M. Lockwood (Ed) Moral Dilemmas in Modern Medicine (oxford, Oxford University Press),pp 11 (1985) 33. Ibid,p Ibid, p Ibid 84

19 A human being is thus a person as soon as she has showed any sign of rationality, but not before. It is here that Baertschi derives the term nonhuman persons from Tristram Engelhardt and claims that fetuses, infants, the profoundly mentally retarded, and the hopelessly comatose provide examples of human nonpersons. For capabilitism, a human being is a rational entity as soon as she possesses the capability for it even if it is not manifested now, it will in near future after reaching maturation. To its extreme form capabilitism asserts that the embryo possesses rationality from the moment of conception though actualism and dispositionalism deny this. 2. MORAL STATUS OF EMBRYOS 2.1 RIGHT TO LIFE AND MORAL STATUS OF EMBRYOS But again there are some who accept that the human embryo is a human being but argue that the human embryo does not have the moral status requisite for a right to life for being a member of a particular species does not guaranty its rights. The debate over what we mean by personhood continues, but at least we recognise that with personhood comes the right to life. Some writers believe that it is at birth that a being becomes a person. At the moment of birth the baby is accepted into the human community and we start to detect the first signs of its distinct personality. But by stating that birth is the answer, problems associated with the fetus / baby change arises. The similarity between later fetuses and premature babies is a difficulty. While there is no consensus about the capacities that are necessary for the right to life, some of the capacities that have been proposed include reasoning, self-awareness, and agency. 36 Professor Michael Tooley holds a very similar line of thought to Locke. Tooley s view was that person is a purely moral concept, one completely defined in terms of bearing a right to life. He contends that the real precondition to having a serious right to life or to being the kind of moral entity we call a person is subjectivity or awareness. He calls this the self-consciousness requirement and unhesitatingly points out that fetuses and infants lack this requirement. He focuses on the fetus's right to life; he says, "To ascribe a right to an individual is to assert something about the prime-facie obligations of other individuals to act, or to refrain from acting in certain ways." 37 He argues that bearers of rights must have at least the capacity to desire what they have a right to, and that in the case of the right to life, this 36. Kuhse, H., and Singer, P., 1992, Individuals, Human, and Persons : The Issue of Moral Status, in Embryo Experimentation : Ethical, Legal, and Social Issues, eds. Singer, P. et al., Cambridge University Press: Tooley M. Abortion and Infanticide, In Singer, P. (Ed), Applied Ethics, Reprinted from Philosophy and Public Affairs,2 (1),