01. HCE 227-40.doc

9 Artificial Reproduction, Fetal Testing, Abortion OVERVIEW In Chapter 8 we discussed the various principles or norms for virtuous human action, describing how these principles are related to the fundamental virtues of faith, hope, and charity. As one norm relating to the virtue of hope, in Chapter 8 we discussed the principle of sexuality. In our times ethical questions regard- ing human sexual behavior are highly controversial, but we showed that accord-ing to Christian faith and the natural law the right use of our sexuality must accord with its intrinsic teleology; i.e., the purpose of the Creator and our present understanding of human nature as it has been refined by the life sciences. We then showed that the human race is divided into male and female in giving them a basic orientation and enabling people to join actively in forming family, the natural unit of human society, in which it is beat ecologically for human persons to be born and reach maturity so as to be able to find their human fulfillment in families of their own. Hence, uses of sexuality which destabilize good family life or which fail to strengthen it are harmful to individuals and to society and may not ethically be promoted by the health care profession. On the contrary, the health care profession may make a very important contribution to a Christian expression of sexuality. Since many of the medical problems associated with sexuality are connected with its reproductive aspect and depend on the judgement of "When does life begin?" in 9.1 we will deal with this question as preliminary to its ethical implications. Then in 9.2 we will treat of methods of artificial reproduction based on the advances in embryology, but which often incidentally involve the destruction of human embryos. In 9.3 we will examine methods of ascertaining the condition of the fetus in the womb, since these can be used for purposes of either therapy or termination of pregnancy. Finally, in 9.4 and 9.5 we will treat of the most serious violation of responsible parenthood, namely, the intentional destruction of a living human person before its birth. Other bioethical questions relating to human reproduction will be discussed in Chapter 10. 9.1 WHEN DOES HUMAN LIFE BEGIN? Embryologists who are asked this question in a purely scientific context usually answer without hesitation, "A human organism, a member of the human spe-  228 Artificial Reproduction, Fetal Testing, Abortion cies, comes into existence when a human ovum is fertilized by a human sper-matozoa and a one-celled zygote is produced." Nevertheless, the abortion con- troversy has led many people, even embryologists, to question the correctness of this answer or at least its ethical significance, especially when the term "human person, subject of human rights" is introduced into the discussion. They then opt for some theory of "delayed hominization" according to which human personhood does not begin until sometime after conception (Callahan 1970; Lotstra, 1985; McCartney, 1986; Bole, 1989; Cahill,1993). We will try to list and discuss the major theories of this type in an orderly sequence (cf. Gallagher 1985; Grisez, 1990; Regan, 1992; Johnson vs. Porter, 1995). Ancient and Modern Embryology First, one very old difficulty originated in Greek thought with the Pythagoreans, who said that "the body is the tomb of the soul" and taught reincarnation. Adopting this conception, the Platonists believed the human spiritual soul had existed eternally in heaven, but as the result of some original sin it was "infused" at conception into a body alien to it. On the contrary, for Aristotle, a physician's son and a biologist, the human soul was not alien to the body but its natural form. Yet in view of his basic philosophical principle that "the matter and form of any substance must be mutually proportionate," he doubted that the human soul with its complex faculties could be present at conception, as his teacher Plato had thought, because he himself thought that at that moment the only matter available was the relatively formless menstrual blood. Hence Aristotle reasoned that it must take some time before the active power in the semen (which he supposed remained working for some weeks in the womb) could form the menses first to the level of physiological ("vegetative") life and then to the level of sentient ("animal") life. Only when the fetal body had reached this high state of formation could it receive its final organization which, because of our human spiritual intelligence, requires the direct action of the First Cause of the universe, the divine "Thought Thinking Itself" (B. Ashley, 1976). The Stoic were influenced by both Plato and Aristotle, but believed it was only at birth that a child breathed in the "vital spirit." Aristotle's biology was authoritative for medieval theologians. The fact that it was accepted both by the Dominican Thomas of Aquinas (Taylor, 1982 and the great Franciscan theologian Duns Scotus led to the general supposition of Catholic theology until modern times that ensoulment takes place between one and two months of gestation, when the fetus has a definitely human form. Some Catholic philosophers have recently attempted to rehabilitate this theory of "delayed hominization" as proposed by Aquinas (Donceel, 1970, 1985; Pas-trana, 1977; Wallace 1989) or Scotus (Shannon and Wolter, 1990; critique by Arkes, 1992). Officially the Catholic Church has-;never based its opposition to direct abortion on the claim that the human sou1is created at conception. The Declara-tion on Procured Abortion (CDF, 1974), while affirming that from the time of conception direct abortion is always a grave sin, appended a note #19 saying, „  9.1 When Does Human Life Begin? 229 "This declaration expressly leaves aside the question of the moment when the spiritual soul is infused. There is not a unanimous tradition on this point and authors are as yet in disagreement." The advances in embryology, however, have made the CDF more confident that the theories of delayed hominization are scientifically obsolete, so that its more recent Instruction on Respect for Human Life (1987) (I, 1, italics added) says: Certainly no experimental datum can be in itself sufficient to bring us to the recognition of a spiritual soul; nevertheless, the conclusions of science regarding the human embryo provide a valuable indication for discerning by the use of reason a personal presence at the moment of this first appearance of a human life: How could a human individual not be a human person? ... Thus the fruit of human generation from the first moment of its existence, that is to say, from the moment the zygote has formed, demands the unconditional respect that is morally due to the human being in his bodily and spiritual totality. The human being is to be respected and treated as a person from the moment of conception and therefore from that same moment its rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life. Aristotle's view still has philosophical supporters because of the philosophical cogency of his principle that human ensoulment cannot take place until the body it substantially unifies is proximately organized for it. But he did not know that all the essential information needed to construct the human body is already present at conception in the zygote's nucleus. We now know that the sperm is haploid (has only half the human set of chromosomes) and ceases to exist once it has initiated fertilization by contributing its half of the genetic information. We know too that the ovum is already highly structured and contributes the other half of the genome, the bulk of the cytoplasm, and certain additional genetic factors in its cytoplasmic mitochondria. Since the zygote is thus already highly organized, the Aristotelian requirement for human ensoulment seems satisfied at conception. This conclusion, however, is rejected by Bedate and Cefalo (1989; cf. answer by DeMarco, 1991) because the embryo in its interaction with the mother during pregnancy acquires additional information necessary for its normal development. This overlooks the fact that the first stages of embryo development can take place in vitro, entirely independent of the mother. Moreover, even after birth when it is obviously individuated, the child continues to receive from its food and environment information necessary for its development to adulthood. Any organism processes and assimilates all this additional information in the course of its normal functioning as a self-preserving and self-constructing unit. But what guides this developmental process as a consistent whole in which any step missed is disastrous? It certainly is not the information the organism assimilates during subsequent developmental phases, but the genome present from conception. It is odd that Bedate and Cefalo try to support their thesis by pointing to the existence of false pregnancies that produce only hydatidiform  230 Artificial Reproduction, Fetal Testing, Abortion moles, masses of disorganized tissues or fragmentary organs, since it is well established that these are the result of radical genetic defect in the pseudozygote (Lejeune,1989; Suarez, 1990; R. A. Fisher, 1991). Continuity of Life A second objection to saying that human life begins at conception is whether, in view of biological and cosmic evolution, it makes sense to speak of a "begin- ning" to human life at all. Before the zygote, the ovum and sperm were already alive, and they in turn had progenitors going back through evolution to early life on earth, and then on back through the chemical and physical processes of cosmic evolution to the Big Bang–and who knows what came before that! But the question at hand is not the "beginning" of all life or of the cosmos, but the coming into existence of this individual organism, Ms. or Mr. Jones, a member of the human species. The ovum and sperm are indeed two living entities, but not complete organisms, since each has only half the human set of chromosomes and thus they are unable to reproduce themselves. Only when the two gametes unite to form one zygote does one complete new, unique human organism capable of self-development and reproduction come into existence. Nor is it true as pro-choice advocates used to claim that the embryo and fetus are not independent organisms but only cells of the mother's body (Wahlberg, 1971; Wasserstrom, 1975). The conceptus has a unique genome, distinct from its mother's, and its dependence on her in prepartum is not unlike its postpartum dependence on her for its nourishment and on a suitable environment for its warmth and protection. Thus philosophers who insist that a definition of a human person cannot be merely "substantialist" are correct (Goldenring, 1985); it must be processive and developmental. The first step in medical procedure is to take a history of the patient. But not all processes are changes like a rise in temperature or an increase in size or velocity. As was shown by the process philosopher Alfred North Whitehead (1929), the essence of any process is genuine novelty. In the complex processes of becoming new, entities emerge that are materially continuous with the past but formally discontinuous with it in structure and function. Process is not always a mere reshuffling of what was already there, but the emergence of new realities radically distinct from those that previously existed. Therefore we still need to ask exactly when in the long process of biological reproduction is the critical point at which a new organism, which did not exist before, comes to exist so that where there was one organism, there are now two, or where there were two, there is now a unique third. During a lifetime any human person undergoes startling changes from childhood to old age, but we recognize the same person. Psychiatrists are also acquainted with aphasiacs who seem to have forgotten their past, and with patients with "multiple personalities." Neverthe- less, therapy for such patients rightly assumes that each really remains an identifiable person whose healing will be the restoration of his or her sense of unitary identity as a person.  9.1 When Does Human Life Begin? 231 Development, Process, Potentiality Third, because of this developmental, processive character of human life, some, notably Grobstein (1983,1988), followed by Richard A. McCormick (1987, 1990, 1991a, 1991b; cf. Holbrook, 1985), refuse to admit that the identity of a human being is established at conception by its unique genome. Instead they urge a "developmental" rather than a "genetic" approach to embryology and claim that human identity is only gradually established through a series of phases. Others have expressed much the same idea by claiming that the embryo and fetus are only "potentially" a human being, or are "in the process of becoming human but are not yet human." Thus we read in a current bioethics textbook (Engelhardt, Jr., 1986a) the following argument: If X is a potential Y, it follows that X is not a Y. If fetuses are potential persons, it follows clearly that fetuses are not persons.... Undoubtedly, the language of potentiality is itself misleading, for it is often taken to suggest that an X that is a potential Y in some mysterious fashion already possesses the being and significance of Y. It is therefore perhaps better to speak not of X's being a potential Y but rather of its having a certain probability of developing into Y (p. 111). But is it accurate to describe the change of a fetus into an adult as X becoming Y? It is the identical organism P which is both X (a fetus) and Y (an adult), and it is this P which in ordinary language we call a "human being," "a member of the human species," or a "human person." To say a fetus is "poten- tially" an adult means it is in the process of becoming an adult, while continu- ously remaining a human being or person. That this potentiality is something real about the fetus itself is evident from the fact that a dog fetus is not poten- tially a human adult; nor is a zygote potentially any adult but only an adult with the same unique genome. It will not do to say, as Engelhardt suggests, that a fetus is "probably" an adult, rather than "potentially" an adult. The concept "potentiality" implies "real possibility" but says nothing about whether the realization of this possibility is certain, probable, or improbable. The concept of "matter " so essential to science denotes some reality as it is potential, Le., subject to change, either change of certain attributes (as a fetus changes into a teenager) while remaining the same identical individual, or a more radical change in which old individuals are destroyed and a new individ- ual or individuals produced (as the sperm and ovum lose their individuality and by uniting produce a zygote). Potentiality, in this sense of "matter" or "stuff," is something passive, as clay in the sculptor's hands. But "potentiality" has also an active sense, as the power to mold and develop passively potential material. Thus the sculptor has active potential to form a variety of shapes out of clay, while the clay has passive potentiality for various figures. Organisms are "potential" in both these quite different and correlative senses. At any moment of its biography, an organism is made of matter, of cells, of organs which are passive stuff capable of being further organized and regulated. But the same  232 Artificial Reproduction, Fetal Testing, Abortion organism also has inherent power to differentiate, develop, and regulate itself by its active functions (active potentialities). This capacity for self-development is the "life principle" that gives unity to the organism and guarantees its bio- graphical identity. Thus the X that was Z (a person in its fetus phase) not only becomes Y (a person in its adult phase), but X is the cause of this change of X from Z to Y. As the early Christian theologian Tertullian said, "The one who will be a human being is already one" (Tertullian; d. 240). This active potentiality for self-development, as with any function, pre- supposes some kind of organic structure, but it is necessarily a minimal struc- ture, since on its relatively simple basic structure the organism is able to elaborate itself into its adult complexity. Modern embryology has shown clearly (I. Kaiser, 1986) that this minimal initial structure must be understood not in a preformist way as a miniature model of the completed structure, but epigenetically, as endowed with the information necessary to construct this total structure as well as the directing energy to build it. Thus, the potentiality of the zygote consists neither in a mock-up of the many-celled adult, nor even in just a blueprint of the adult, but in an active potentiality for self-development and self-reproduction, a potentiality based on the minimal actual structure of the zygote and residing principally in the chromosomes of its nucleus con- taining the information necessary to produce the maximally differentiated adult structure. Some also question exactly how to pinpoint the time of "conception," since the fertilization process from the penetration of the sperm to syngamy (the fusion of the haploid nuclei of the ovum and the sperm into the single nucleus of the zygote) is not instantaneous, and the chromosomes and their maternal or pater-nal origin remain identifiable (Daly,1987,1988). More probably the new organ- ism comes into existence at syngamy rather than at penetration, since only then a new, single nucleus with its complete set of chromosomes exists to unify the new organism and direct its orderly development. Certainly, the time between penetration and syngamy is much too brief to be of practical significance from an ethical perspective. Between Syngamy and Implantation Richard A. McCormick, SJ,1991b (following Mahony, 1984, and Grobstein,1988 see also Dedek, 1972; C. Curran, 1975; B. Brody, 1975; Hàring, 1976; see critique Diamond, 1991; Irving 1993a, 1993b) argues that during the two weeks between fertilization and implantation, at which time twinning ceases to be possible, the conceptus, though deserving special respect, cannot be a human person for two reasons: First, early events in mammalian development concern, above all, the formation of extraembryonic-rather than embryonic-structures. As the report by the Ethics Committee of the American Fertility Society (1986, p. 27) says, "This means that the zygote, cleavage and early blastocyst stages should be regarded as preembryonic rather than embryonic." ...  9.1 When Does Human Life Begin? 233 Second, genetic individuality and developmental individuality do not coincide. As Grobstein has noted, at fertilization: uniqueness in the genetic sense has been realized, but, for example, unity or singleness has not. The zygote, with its unique genome, may give rise in either natural or induced twinning to two or more individuals with identical heredity In some species this occurs naturally and regularly. Moreover in mice (and probably in most if not all mammals including humans) cells of two or more different genotypes can be combined to form one embryo which develops into an adult that is a mosaic of more than one genotype (Grobstein, 1988, p. 25). A third similar objection was developed by the Catholic theologian Nor- man Ford (1988; answered by J. J. Billings, 1989; A. Fisher, 1991; Flaman, 1991) who argued that, though the zygote is an individuated organism, this individuality is lost when cleavage produces a loose collection of cells held together only by the jelly-like zona pellucida, each totipotential cell of which is capable of becoming a complete organism. Therefore, only when the possibility of twinning ceases does a new unified organism that can be hominized come into being. The first of these objections, in spite of its support by the American Fer- tility Society and certain other embryologists (e.g., Austin, 1989), arises from a terminological confusion. It is misleading to speak of the inner cell mass as "embryonic," the trophoblast as "extraembryonic," and the two together as "preembryonic." In fact the blastocyst (embryo) is one living organism which has two differentiated parts: the temporary but necessary trophoblast formed from the outer cells of the blastocyst and the permanent but still very small inner cell mass. At this phase the inner cell mass consists of very few cells compared to the trophoblast because the permanent body of the child cannot grow until it has access to nourishment from its mother. For this, implantation in the uterus by means of the trophoblast is necessary (Lindenberg and Hytel, 1989). Once this is achieved, the inner cell mass grows rapidly and differentiates as the permanent body of the embryo, while at birth the placental apparatus derived from the trophoblast will be discarded. It should also be noted that some cells of the trophoblast become incorporated in the permanent body. The second and third objection neglect much of the known detail of the embryological process. To distinguish, as Grobstein does, between "genetic" and "developmental" individuation is meaningless, since the genome guides the organism's own self-development. As we have already noted, the entire developmental sequence from zygote to mature adult is controlled by the genome, including the incorporation of new information from the environment (Ashley B, 1976; May, 1991; Moraczewski, 1990; Heaney, 1992; Ashley and Moraczewski, 1994). It is not surprising that a process so complex as human gestation sometimes fails; and in about 0.04 percent of births identical twins result (MacGillivray et a1.,1988). For the human species, with its massive brain, multiple births are maladaptive. Hence, only one ovum normally matures at a time, and admits only one sperm, but sometimes two ova or more are fertilized  234 Artificial Reproduction, Fetal Testing, Abortion almost simultaneously and heterozygous twins or multiple births are produced. Again, many species of animals normally produce multiple, genetically identi- cal litters, but in the human species a zygote normally develops into a multicel- lular organism that retains its singleness to term. But in the first two weeks (and perhaps a little beyond) twinning (or triplets, etc.) may be produced either at the two-cell stage with two separate placentas, or in the blastocyst with one pla-centa, or very late with the risk of the formation of conjoined twins (cf. K. Moore, 1988,1989; Thompson and Thompson, 1980; Sadler, 1990). This abnormal separation of the two cells formed at the first cleavage or later of the inner cell mass of the blastocyst in probably about 30 percent of the cases is due to a genetic defect (Parisi et al., 1983) (This also happens in heterozygous twinning, Phillipe, 1985). The cause of this developmental acci- dent in other cases is still not known. The fact that a group of cells is able after separation to develop independently into a second individuated organism in no way refutes the prior existence of an individuated organism, but confirms it. If twinning occurred at the first cleavage, then it was preceded immediately by the single-cell zygote. If it took place at some later point in the development of the blastocyst, then it was preceded by the blastocyst, which had developed normally up to that stage or its regular development would have been termi-nated. Recently J. Porter, criticizing a refutation of delayed hominization by M. Johnson (Johnson vs. Porter, 1995), has argued that if an individuated human person existed before twinning, this person would have to split into two per- sons, neither identical with the previous single person. The embryological evi-dence suggests not that the original organism splits, but that it remains itself but loses one or more cells that become the twin. At this stage the abnormally separated cells are capable of developing as a distinct organism, in the manner of asexual reproduction in plants, because the expression of the whole genome still remains possible (totipotential) in all the cells of the organism, although later genomic expression is differentially limited as different groups of cells are destined to form different tissues and organs (Scott, 1991). Nor is it true, as Ford supposed, that for a while after cleavage of the zygote only a loose collection of independent cells is present (Peredo and Coppo, 1985). Actually, after cleavage of the zygote begins the blastomeres (dividing cells forming the blastocyst) begin to compact, form interconnections, express the genome by protein synthesis (Braude et al., 1988) and, after the third cleavage, differentiate into outer and inner cells. Already in the first two cleavages the orientation of the division is genomically determined and the position of each cell in the whole is found to be significant for future differen- tiation (Sadler, 1990; Scott, 1991). At the first cell division, although the two cells have the same genome, they are not identical since they do not receive the same portion of cytoplasm; until implantation the total volume of cyto- plasm is simply subdivided again and again. Significantly, at the second divi- sion one cell, evidently more active than the other, divides before it, so that for a time there are three (not four) cells. Even the dorsal-ventral and anterior- posterior axes on which the whole body plan of the organism is constructed  9.1 When Does Human Life Begin? 235 are probably determined very early, perhaps even at conception. (Scott, 1991, p. 127; Gurdon, 1992). “Infusion" of the Spiritual Soul From a philosophical and theological viewpoint the fact of identical twinning is said to raise the question, "Since a spiritual entity is indivisible, if the zygote A was a human being with a spiritual soul, when part of its body became the twin B, where did the spiritual soul of B come from?" To answer this question we must first correct the impression given by the commonly used expression (originating in Platonic philosophy) "the infusion of the soul," meaning that God first creates the spiritual soul and then infuses it into the body. On the contrary, the Catholic Church teaches that (a) because the soul is spiritual it cannot be produced by any material process, but can only be immediately created by God; (b) the human soul does not preexist its union with the human body; (c) therefore, God first creates the human body, using the human parents as his instruments, then completes this same continuous process by creating the human soul as the unifying form of the body He has prepared for it through its parents as his instruments, thus producing a unique human person. Hence God first produces and ensouls organism A designed to develop normally, but if through some genetic defect or chance some part of A, namely B, becomes separated from A at an early phase of A's development, God ensouls B just as he did A, since at this point the cells of B are still totipotential. The fact that the Creator, whose providence extends to abnormal, chance events as well as to normal, natural events, uses chance to produce individual B is no odder theologically than that he ensouls the child begotten of a sinful act just as he does one begotten in holy matrimony. Miscarriages Fourth, related to this last problem is the difficulty of some theologians (Häring, 1976) who are troubled by the high percentage of conceptions that never reach delivery. Some estimate this to be as high as 55 percent, although a recent study indicates this may be closer to 30 percent, as determined from the earliest stages of fertilization (Grudzinskas and Nysenbaum, 1985; Wilcox et al., 1988). They ask, "Is it possible that God could have created so many human souls, foreseeing that they will never reach the level of conscious human life?" In answer to this difficulty it should be recalled that through most of human history, at least 50 percent of all infants perished in infancy. Also, evidence suggests that syngamy frequently fails to be successfully completed (Diamond, 1975; Wilcox et al., 1988). Probably many of these imperfectly fertilized ova were never prepared for ensoulment. Although the ova were stimulated by the penetration of sperm to begin a certain number of cell divisions, these entities were never true human organisms. Thus this theological problem of apparent human wastage, which is only one facet of the general problem of God's permission of evil in the world  236 Artificial Reproduction, Fetal Testing, Abortion and of miscarriages in particular, however it is to be answered, cannot be sol by a theory of delayed hominization. Cerebration Fifth, the basic principle on which Aristotelians based their theory of delayed hominization was that human ensoulment presupposed a highly organized body, but Aristotle gave this a still more concrete, empirical formulation. For him the criterion of this organization was the appearance in the matter of a "primary organ" through which the soul activated the organism, just as in a machine there must be a prime mover (e.g., the engine in an automobile). Therefore, a fetus could be activated not just with vegetative (physiological) life, but with animal (cognitive) life, only when its central organ of sensation with the minimal structure required for psychic functions had appeared. Mistakenly, Aristotle believed that this primary organ of sensation is the heart. Thus, on the evidence of his famous experiment in which on successive days he broke fertil- ized chicken eggs laid on the same day one by one to observe successive embryological phases, he concluded that the chick passed from the vegetative to the animal stage when the first signs of a heart appeared. Hence, Donceell (1970, 1985, 1986) and Pastrana (1977) argue that since in modern biology the, "primary organ" is the central nervous system, especially the cerebrum which is first observable in the fetus at about three months, before this stage the embryo or fetus is not even an animal organism and a fortiori not human. Apart from any reference to Aristotle, others also argue that human life begins late in fetal development, at the beginning of sensation or thought (L. Sumner, 198I L brain activity (Goldenring, 1985; Shea, 1985, 1987), viability, birth, or even at one or two months of infancy. The weakness of such arguments is evident when we take into account the fact, not known to Aristotle, that a sequence of primordial centers of organiza- tion in the embryo goes back continuously to the nucleus of the zygote, long before the brain appears as the final center. From the beginning of this developmental sequence the zygote's nucleus has contained all the information and active potentiality necessary eventually to develop the brain and bring it to the stage of adult functioning (Ashley, B., 1976). Thus, although it is true that the developing fetus first actively exhibits vegetative (physiological) and animal (psychological and motor) functions and finally, long after birth, specifically human functions, it possesses from conception the active potentiality to develop all these functional abilities. Only the minimal structure necessary for this active potentiality of self-development (even on the basis of Aristotle's philosophical principles) is required for an organism to be actually a human person, not the brain structures necessary for adult psychological activities (Australian Re- search Commission, 1985). We should note here also the special problem of the anencephalic infant. "Anencephaly is a congenital absence of a major portion of the brain, skull, and scalp with its genesis in the first month of gestation" (Stumpf et al., 1990). We cannot conclude that such a child is not a human person, and certainly it must  9.1 When Does Human Life Begin? 237 be given the "benefit of the doubt." In anencephalics the brain is seldom if ever wholly lacking, but the cerebral cortex has not developed normally and even after some development may have degenerated. "In some embryos, before degeneration has occurred, a laminated but abnormal cerebral cortex may exist. Late-gestation fetuses or infants with anencephaly may still have small foci of histologically normal cerebral cortex or olfactory tracts" (Stumpf et al., 1990). Such brain rudiments would not have developed at all unless the organism had the radical genetic capacity to produce a complete organism with a brain, as is evidenced by its otherwise often normal somatic development, but this capacity has been frustrated at some point by genetic or mechanical factors. Personhood as Social or Legal Construct Sixth, some proponents of delayed hominization simply bypass the whole biological analysis we have just sketched and maintain that the presence of a biologically defined human organism or "human being" does not settle the question of when the "human person," the subject of "human rights," comes into existence (Engelhardt, 1977, 1986a, pp. 104-35). The Vatican On Respect for Human Life (1987) asked, "How could a human individual not be a human person?" Yet J. Porter contends that "it is not obvious that a human organism is ipso facto a human person" (Johnson vs. Porter, 1995). It would seem that the reason some today argue that the terms "human being" and "human person" are not identical nor coextensive is that for them "human being" seems to be a biological term equivalent to "member of the human species," for which definite empirical criteria exist, just as for "elephant" or "pigeon." "Human person," however, seems to them to be a legal, philosophical, or theological term difficult to correlate with the biological "human organism" based on objective scientific facts. This doubt may reflect a dualistic notion of the human person, or for some it may express the conviction that the notion of “person” is not an objective datum of nature but a social construct relative to a particular culture or social system. Thus Engelhardt, Jr. (1986b) argues: Not all persons need be human, and not all humans are persons. In order to understand the geography of obligations in health care regarding fe- tuses, infants, the profoundly mentally retarded, and the severely brain damaged, one will need to determine the moral status of persons and of mere human biological life, and then develop criteria to distinguish be- tween these classes of entities. Further, even if infants are not persons in the strict sense E.T. would be, there still may be important reasons for according special rights to infants. (p. 108) Ethicists who hold this or similar views hasten to assure us that the social consensus on who (or what) is or is not a person should not be based on merely arbitrary criteria such as race or sex, but they insist it can never be absolute, since only adults capable of actually functioning as free citizens are unequivocally persons. Engelhardt tries to show that there can be good reasons for modern  238 Artificial Reproduction, Fetal Testing, Abortion society to treat infants as persons, although, according to his criterion, they are not in fact such, while at the same time not to treat the unborn child as a person (p. 115-17). Yet he excludes seriously defective children from personhood (Engelhardt, 1986a; also Tooley, 1983). This moral and cultural relativism rests on the assumption propagated by philosophical idealism and secular humanism that ethical values are simply human constructs relative to different cultures. But if our definition of the human person and thus of human rights is merely constructed, how is it possi-ble to criticize the laws of the state as unjust or a culture as inhumane? We’ve already argued (p.9), that personhood is not bestowed by society, but is rooted in human nature (O'Donovan, 1984). We are social beings because we are per-sons, not persons because society designates us as such. The criteria of person-hood must transcend human laws and values, even if these are based on what appear in a given culture to be good, nonarbitrary reasons. This is why in the United States we have always appealed to the "inalienable rights of man” as does the Universal Declaration of Human Rights of the United Nations (1948). This need for a prophetic criticism of human laws and customs has always been the basis of the Christian theological insistence that the definition of personhood should be broad and should extend to the unborn (Dougherty, 1985; Noonan 1985). We have also shown (p.5) that human nature can be known, although not exhaustively, by empirical methods which can be appreciated by the scientifi-cally trained health care professional. Conscious and Unconscious Persons Seventh, final type of argument for delayed hominization probably is the underlying assumption of most of the others, namely that if the embryo or fetus is unconscious it is not really a person. How popular this notion is was vividly evidenced by the reactions to the film, "The Silent Scream." Pro-life people used this film to show that the fetus was capable of response to painful stimuli, and pro-choice people tried to refute this evidence. Thus both parties seem to think that the criterion for being a human person with rights is sensitivity to pain. The same assumption appears in the controversy over animal rights. If animals can feel pain, which is obvious, are they not persons? At least, do they not have rights that are same or similar to those of humans? Undoubtedly, a lack of respect for the life of animals and even of plants and the environment opens the way to ruthlessness toward human persons (Rodd, 1985; Mulvanney, 1986). It is also true, however, that if the distinction between the kind of respect due to human rights and the kind due to subhuman nature is blurred, the value of both may be minimized. Some argue that, after all, experimentation on animal subjects and on human subjects is only a difference of degree (Singer, 1986). For reasons elaborated in Chapters 1 and 2, this book assumes that, although veterinary medicine is also an important profession to which general bioethics has applications, the health care profession deals with human persons whose rights are valued differently from the respect due to other forms of life.  9.1 When Does Human Life Begin? 239 We have already cited Tristram Engelhardt Jr.'s (1986) contention that human personhood is a social construct. In order to show that this social construction of personhood need not be arbitrary, Engelhardt supplies the following definition: ... Persons are persons when they have the characteristics of persons, when they are self-conscious, rational, and in possession of a minimal moral sense....[S]uch entities are persons in the strict sense (p. 109, italics in original). This conception of personhood is derived from the tradition initiated by Des- cartes when he said, "Cogito ergo sum" ("I think, therefore I exist"), thus identi- fying his personhood with his thinking, not with himself as a thinking organism. This Cartesian assumption later became the basis of the idealism of Immanuel Kant, whose ethics, we have shown (p. 153), has greatly influenced current bioethics. It also underlies the legal positivism that makes personhood depend purely on a legislative or judicial decision. Engelhardt meets the obvious object- tion to identifying personhood with consciousness that even persons "in the strict sense" are not always conscious, but continue to exist while asleep or anesthetized, by arguing that their bodily continuity bridges the gaps in con- scious experience since, "The body's capacities are the capacities of a person" (p. 122). But if the body's capacities are those of a person, why are not the capacities of the zygote which has the capacity (active potentiality) to develop itself into a self-conscious adult also a person and indeed the very same person as the adult into which it develops itself? The nature of "consciousness" is highly debated in current literature (Dennett, 1995; Edlerman, 1995; Penrose, 1995; Rosenfield, 1995), but we must make a distinction between animal and human consciousness. Animals are conscious both of external objects and of internal states of pleasure, pain, fear, aggression, etc. Humans share this type of consciousness with animals, but also have the capacity for abstract thought and reflective self-consciousness, as is evident from the specifically human use of abstract and syntactic language. Once a totally unconscious fetus has developed a central nervous system it no doubt experiences a certain level of animal consciousness, but it is unlikely that even a child before the age of six or seven has more than moments of truly human, reflective self-consciousness. Are we then to say that personhood and human rights are only attributed to a child of four or five by social consensus? Unless one is an idealist for whom the human self is nothing but thinking, a human person is an organism which sometimes sleeps, sometimes wakes, sometimes is comatose or anesthetized, and who becomes actually self-con- scious only gradually and may become unconscious long before dying. But subhuman animals have no active potentiality ever to achieve such abstract and reflective thought, while the zygote has the capacity to develop itself into the human adult who thinks humanly. The ethical and political dangers in the idealistic identification of personhood with thinking on which Engelhardt's definition is based should be obvious. Because 1 alone am sure that I am authen-  240 Artificial Reproduction, Fetal Testing, Abortion tically self-conscious, it is easy for me to explain the behavior of those who do not belong to my in-group as merely subhuman and animal, as slave owners once excused their treatment of black slaves. Conclusion We conclude this exploration of when human life begins by affirming that a bioethically adequate definition of human personhood must not only consider the person as a conscious, intelligent, free adult, but it must also include the entire biography of the unique organism, whose personhood is fully self-con-scious and fully evident in morphology and behavior only at certain periods of that biography. This means that even if personhood is defined behavioristically, not only actual, here-and-now performance must be taken into account but the real potentiality for behavior. As embryologic research advances, the evidence that human life begins at fertilization has become overwhelming. Thus it seems difficult for a scientifically educated health care professional to doubt that he or she has been the same person with a continuous biography since that unique zygote began to develop itself into this adult who can look back over this personal history and acknowledge it as his or her own. The medical profession, therefore, needs to work toward consensus on this issue of who is a person with human rights on the basis of what it knows best, namely, biology and psychology, plus its own professional self-understanding (Burtchaell, 1980). Such considerations may need to be tempered by legal, philo- sophical, or theological reflections, which in turn must take into full account and be consistent with direct professional experience. It would be a gross evasion of professional responsibility to follow the example of the Nazi physicians and leave it to demagogues to determine which human beings are persons and which are nonpersons (Lifton, 1986). 27