(c) Copyright March 31, 2005
Kenneth R. Conklin, Ph.D.
All rights reserved
SUMMARY: The controversy over Terri Schiavo provides an opportunity to focus attention on fundamental moral issues. Should an individual have a right to choose death for himself or for a close relative unable to make the choice? Should society be able to prevent such a choice, or to keep someone alive who prefers to die? Should society be able to require the killing of criminals or even of merely unproductive or inconvenient people? Should society, or individual people, have any right to make decisions about life and death; or should such decisions be left in the hands of God? There is a spectrum of stages of human life, from before conception to after death; and the larger moral issues reverberate in different ways at different stages. It is also relevant to consider animal rights, because it might be that all sentient beings have fundamental rights; and the rights of human beings should be considered within that broader context. All such questions need to be taken seriously. They are all interconnected. They all should be decided by each person and by society, on the basis of logical deduction from fundamental principles and after thoughtful meditation and prayer. This essay seeks to clarify the questions and their interconnections, without presuming to provide answers.
The recent controversy over removing a feeding tube from Terri Schiavo has been highly publicized and politicized. Millions of people have given serious consideration to some legal and moral issues they seldom think about. It's a golden opportunity for a philosopher to help people think clearly and see how practical decisions are logically connected to fundamental moral principles. In this essay I will try hard to avoid stating my own views. Indeed, I am still struggling over some of them. I will go out of my way to raise points which might seem trivial, strange, or gruesome, but which I believe need discussion. We will also go around some things twice, in different contexts.
There are a host of factual questions about Schiavo that captured media attention but may not be morally decisive: Did she have conscious awareness? Was she suffering? Did her husband really love her? Should the estranged husband with a common-law wife and children on the side still be legally recognized as possessing the right to make decisions about her healthcare, especially when he might profit financially or socially from her death; or should guardianship pass to the parents or to the brother? But none of those questions arise unless we first believe it is morally right for someone to commit suicide or to help someone else commit suicide; or unless we believe it is morally right for a family or society to kill an unproductive individual whose continued existence places a strain on limited resources.
If someone is suffering horribly from a terminal illness, does she have a right to commit suicide? A related question is: If someone wants to commit suicide but is physically incapable of doing it, is it morally right for a trusted friend to kill her at her request? And if the patient's wishes are unknown, is it morally right for a trusted next-of-kin to either keep her alive or to kill her based on what that agent judges to be the patient's wishes? But even those questions do not get to the heart of the matter. If someone is fully conscious and rational and in good health, is it morally right for her to choose to commit suicide? A Libertarian might say "Yes, of course; everyone has a fundamental right to decide how to live, and even whether to continue living at all. The most obvious thing you own is your life, and you do not need to invent any excuses if you wish to end it." A Roman Catholic might say "No! Suicide is a mortal sin leading to eternal damnation; and helping someone commit suicide is tantamount to murder. You do not own your life; God owns it."
A factual question is: Was the removal of Terri Schiavo's feeding tube a way of "letting her go" or was it a way of pushing her over the edge? We might never know. The moral question is: do human beings have a right to choose death either for themselves or for someone else; or does only God have such a right? And if human beings have a right to choose death for someone else, it is morally acceptable to do so only out of compassion to put an end to someone's suffering, or is it also morally acceptable to do so for the convenience of protecting group resources against depletion? We are all familiar with stories about Eskimos putting grandma on an ice floe to die when there's not enough food.
A question that is both political and religious is: should the laws enforced by our government be founded on a particular religious belief in God and his commandments; or should the laws allow for each individual to act upon the basis of his own set of religious beliefs or non-beliefs? In America we try to allow people to choose any religion they wish, or no religion at all. In Saudi Arabia a certain view of Islamic religion takes priority, and all civil and criminal laws are based upon that.
If God really exists, and has given us a set of moral commandments, then how in the world could anyone who believes in that, possibly tolerate human laws contrary to the explicitly proclaimed will of God? The theocratic foundation of Saudi society should not be dismissed as improper without further consideration. Christians believe that an all-knowing, all-powerful extra-terrestrial spirit came to Earth in the form of a human and performed miracles. That is bizarre. It is utterly amazing. And if it is true, then it is the most important thing that ever happened. Therefore, shouldn't we organize our lives around that; as well as our government and our laws?
Our society respects freedom of religion; but our laws do not allow any religious cult to practice human sacrifice. The only reason human sacrifice is not a major source of conflict between religion and government is that very few if any people want to practice human sacrifice for religious purposes (although that was done right here in Hawai'i only 200 years ago). But the conflict between religion and law is very obvious when thinking about abortion, because millions of people have participated in abortions. Perhaps if there were millions of human sacrifices on the religious altars of America those would also be socially and legally acceptable, but would they be morally right?
Our laws do not allow murder, even for religious reasons. If a fetus is truly human, then killing it to avoid financial hardship or to avoid 20 years of personal inconvenience would be murder. The law could not allow murder even for people whose religious views do not recognize a fetus as human. On one hand, each person is entitled to his own religious beliefs, including beliefs related to the morality of abortion. On the other hand, if abortion is murder then nobody should be allowed to do it. In the interest of protecting harmonious civil relations we allow people to choose a religion and to choose whether or not to have their own abortions. But it needs to be understood that when we allow people the freedom to choose whether to have an abortion, we are thereby imposing upon those who see abortion as murder, our own moral viewpoint that abortion is not murder. In the absence of social consensus it seems best to leave the matter up to individual choice; however, we thereby deeply offend those whose religious views are different, and we risk the wrath of God if our moral views are contrary to God's (but we risk nothing if God does not exist!).
Government-sponsored abortion clinics supported with tax dollars would be especially hurtful to those whose religious views identify abortion as murder and who are nevertheless forced to pay taxes to provide abortions. For that reason our government has sometimes refused to provide foreign aid to other nations or non-governmental organizations which pay for contraception and/or abortion. But our government does not always respect the religious views of taxpayers forced to pay taxes for purposes they detest -- for example, people who oppose war on moral or religious grounds nevertheless see their tax dollars paying for bombs and bullets. It's hard to imagine what general principle would allow government to demand taxes for one allegedly immoral purpose and prohibit government from demanding taxes for others.
For human beings there is a continuous series of stages of life. At each stage the fundamental question of the right to choose non-existence or death arises in a unique way. Let's go through some of those stages of life from beginning to end.
Even before a man and woman mate, the man is producing millions of sperm continuously and the woman is producing eggs at a rate of at least one per month. Each sperm and each egg is the seed of life. If a man masturbates to ejaculation, each one of the millons of sperm thereby wasted could potentially have created a human being. That's why some religions consider it a sin to masturbate, because it is a waste of a precious gift from God. Genesis 38:8-10 tells of God killing a man named Onan for intentionally "spilling his seed" upon the ground. On July 25, 1968 Pope Paul VI issued his encyclical "Humanae Vitae" proclaiming church doctrine that it is a sin for a man or woman to use any artificial means (such as condom or diaphragm) of blocking the coming together of sperm and egg during intercourse, because the primary purpose of intercourse is procreation under natural law as set in place by God.
The question "When does human life begin?" is highly controversial. Some say a soul enters human life at the time a sperm fertilizes an egg. From that moment on, any intentional destruction of the zygote is an abortion, which some say is a form of murder. Some commentators say that a sin of abortion can take place even as early as two or three days after intercourse, when a contraceptive pill or intrauterine device does its job by preventing the implantation of a fertilized egg into the wall of the uterus. Hospitals are open to the public, and people have a right to expect emergency treatment there. But if a woman has been raped, or has had voluntary intercourse unexpectedly without taking her usual precautions to prevent pregnancy, should that woman have a right to demand that a hospital provide a "morning after" pill (which produces abortion by preventing the implantation of any egg which might have been fertilized)? What if that hospital is owned by the Catholic Church, and staffed by doctors who have Catholic religious beliefs? Should a hospital be required by law to provide services which it considers morally reprehensible? Should a woman be forced to go without services she considers morally permissible and socially essential, simply because the hospital has a moral objection?
A Supreme Court decision Roe v. Wade said that a Constitutional right to privacy implies that no state can have laws that deprive a woman of a right to an abortion during the first three months of pregnancy, but that states may impose reasonable regulations for abortion during months 4-6, and may even prohibit it during months 7-9. The recognition of different rights for different trimesters of pregnancy is apparently based on a belief that a fetus is not yet human in the first trimester but does have the rights of a human during the third trimester. The procedure commonly known as "partial birth abortion" is perhaps the extreme limit of demarcating an abortion from an infanticide -- a fetus might be within only a few minutes before being born, when a doctor inserts an instrument into the womb to puncture and crush the head; and then a suction device shreds and removes the almost-baby. Such a procedure might be necessary to save the life of a woman having birth complications; but the procedure is so gruesome and the fetus is so near to being born that bills have been introduced in Congress to outlaw it. Nevertheless it is open to debate whether an unborn fetus is actually a human being; whether abortion is in fact murder; whether the stage of pregnancy makes any difference to those issues; whether saving the life of a pregnant woman makes abortion morally permissible even if it is considered the killing of a human being (on the grounds of a woman's right to self-defense); whether abortion is permissible in case the pregnancy was created through rape (but it's not a baby's fault that its mother was raped!); etc.
It is also worth noting that there is no necessary connection between a woman having an abortion and the fetus dying. The killing of the fetus is probably the desired outcome -- the pregnant woman wants the fetus to be killed for the purpose of protecting the circumstances of her own life from being overtaken by the inconvenience and financial hardship of taking care of an infant. Or perhaps a medical test has determined that the fetus is deformed, or has a genetic disease or "Down syndrome" -- problems that would not result in the death of the baby before birth, but would require huge expenditures of time and money possibly lasting for many years. Some abortions taking place after the 4th or 5th month of pregnancy, and most taking place after the 7th month, could be done in a way that would both save the life of the mother and also save the life of the fetus. But in virtually all such cases, a primary purpose of the abortion is to kill the fetus, even though it could live with proper medical care. Witholding food and water from Terri Schiavo for two weeks until she died from starvation and dehydration, when she could have gone on "living" for many years, might be more similar to abortion than we realize -- except that abortion is done quickly and the fetus is dead within minutes, whereas Schiavo lingered for two weeks. The primary purpose in both cases might be to kill a "human being" whose human-ness is unclear, for the convenience of the survivors. But perhaps it is morally right to protect limited resources and protect the ability of fully-functioning humans to be fully productive and not handcuffed to years of caring for someone who is less than fully human or in a vegetative state. And perhaps those who favored the witholding of food and water from Terri Schiavo should have simply acknowledged that the purpose of killing her could be achieved more quickly, painlessly, and inexpensively by putting a bullet in her brain.
Everyone agrees that human life has begun once a baby is actually born (if not sooner). In the United States no newborn baby can be killed intentionally or by neglect without that act being subject to criminal prosecution. However, in some ancient civilizations and even in some primitive societies today, infanticide is acceptable for various reasons including government-sponsored population control, eugenic selection of favorable characteristics, protection of a royal bloodline, parental preference for a boy instead of a girl, or inability to afford another mouth to feed. In some ancient civilizations human sacrifice was the custom, including the sacrifice of virgins, young children, or a first-born infant. It is a moral question worth exploring, whether the right to life of an individual infant should outweigh the needs of the parents, the tribe, or the nation, especially if there is a religious belief requiring human sacrifice to please the gods and ensure an abundant harvest. If it is morally permissible for a pregnant woman to kill her fetus merely because she does not want the responsibility of raising a child, then surely it is morally permissible for a government or society to engage in infanticide to protect scarce resources, to improve the genetic pool by allowing only "desirable" babies to live, or to ensure that the gods will smile upon the tribe. Raising these latter justifications for infanticide should not necessarily be seen as a criticism of the common practice of abortion; instead, our society's acceptance of abortion might be seen as a good reason to consider both infanticide and euthanasia as reasonable tools to ensure general prosperity. Good moral decision-making and "social justice" requires all options to be given fair consideration, and decisions to be based on logical deduction from fundamental principles.
If social needs can justify the killing of infants, it is even easier to understand social justification for the killing of adults.
In warfare our purpose is to kill the enemy, and we understand that our own people might be killed also. Of course there are moral arguments against war. Some countries (including our own) allow people to be exempted from military service if they hold a sincere belief that all war is morally wrong, or that it would be wrong for them personally to kill anyone except in immediate self-defense.
The United States still allows capital punishment for certain crimes, although some states prohibit it entirely. Our jury system is based on a belief that a randomly chosen group of citizens, screened to exclude obvious biases, has the moral authority to sit in judgment of the behavior and motives of fellow citizens. Some religions claim that God alone can judge the deeds and hearts of people. But the stability of our society depends upon the assumption that people can fairly judge people. We cannot wait to hear God speak; and it has been thousands of years since the last time God carved his words into stone or wrote them on a wall. If we believe it is morally right and socially necessary for humans to judge other humans on civil and criminal issues including capital punishment, then are we not also entitled to say it is morally right for humans to decide what should happen to Terri Schiavo? This is not a rhetorical question, it is a serious question. There are close similarities between the issue of capital punishment and the issue whether to prolong or to terminate the life of someone whose mental or bodily functioning may be less than human. The obvious difference is that a capital criminal is guilty of a horrible crime whereas a brain-dead person is guilty only of continuing to consume valuable resources. But the obvious similarity is that either we put these matters in the hands of God or else we take responsibility for making decisions ourselves.
Toward the end of life, there is the question whether euthanasia (mercy killing) is morally permissible. Is it OK for someone to kill himself when life becomes unbearable? Or even if life is not unbearable but merely is no longer wanted? Is it OK for someone (a doctor or a friend) to kill someone who has requested death, especially if the patient is no longer in control of his own bodily functions to an extent that would allow him to do the suicide for himself? Is it OK for a close relative, or friend, or appointed guardian, to make the decision for death on the grounds that's what the patient would want, even though the patient never spoke to the issue and is no longer capable of speaking for himself?
After the end of life, there are bones and also artifacts. There have been many controversies regarding the bones and artifacts of native Hawaiians removed from the caves, sand dunes, and backyard burials where they were placed a hundred or five hundred years ago. The national NAGPRA law (Native American Graves Protection and Repatriation Act) was written to ensure the repatriation of bones and artifacts of all America's native people which were being held in museums or private collections. That law got started because of situations arising in Hawai'i. See
In some religions, but especially primitive or pagan religions, the bones of a dead human are believed to still contain his spiritual essence. Even certain artifacts, such as carved wooden images of a god or a person, are considered sacred because the spirit of that god or person can enter the image during prayers or ceremonies. Of course whatever rights such bones or artifacts may have must be asserted by currently-living people who are direct descendants or tribal leaders. But the people now living often say they are taking action for the purpose of protecting the spirits of dead people, and protecting the rights of those dead people to continue to possess the artifacts which were close to them in life and accompanied them on their journey after death. When a living person engages in legal or political activism to protect bones and artifacts, is that living person protecting the "rights" of those bones and artifacts (and the spiritual beings who might inhabit them), or is he actually protecting the property rights or the political rights of himself and his tribe?
Some NAGPRA-related activity is clearly for political purposes unrelated to the spirits of dead people. Bones and artifacts are being (ab)used as pawns in a political struggle. Some hard questions must be raised. If a person in life was a lower-class farmer or even a slave, who had little respect; and if his dead body was buried under a house or in a backyard like a dog; then why is it that when his bones are dug up a couple centuries later the bones are considered sacred and treated with respect never given to the living person at the time his skin covered his bones and he walked the earth? Why should multimillion-dollar buildings or highway projects be stopped or diverted when those modern projects will deliver far more benefit to now-living people than whatever miniscule contribution might have been made by the dead person back in the time when he was living? On the other hand, we the living hope that our own bones and artifacts will be respected in the future. So we set an example of respect for the dead and for their living descendants or tribal members; and also respect for their religious beliefs even though we do not share those beliefs.
One final topic that should not be ignored is whether animals have rights. Cats in ancient Egypt, and cows in modern India, are considered sacred. In Hawai'i some animals are 'aumakua -- kinolau (bodily forms) of a family's ancestors who function as guardian spirits. And yet at least two such 'aumakua -- honu (green sea turtle) and mano (shark) -- are killed for food or for body parts used for cultural purposes such as sharkskin drums.
Some people believe that all sentient beings have a right to life and a right not to have suffering intentionally inflicted on them. They say people should not kill animals for meat, should not use animal skins or furs for clothing, should not make slaves out of animals for use in plowing fields or pulling carts, and perhaps should not even keep animals in confinement for the purpose of collecting eggs or milk.
Some political liberals who support animal rights also support human contraception, abortion, or euthanasia. There might be some animal rights activists who would say "Let Terri Schiavo go" and would support the removal of food and water from her. Such activists seem to be saying that the life of a chicken is more valuable, or has more rights to protection, than the life of Terri Schiavo. Perhaps the universal principle at stake in the minds of these people is the prevention of suffering, so it's OK to hasten the death of a suffering human even though it's immoral to cause suffering to animals by enslaving them or eating their eggs or milk.
A different approach might be to argue that the level of sentience of a creature determines whether it has rights or how strong those rights are; and it might also be argued that the ability to feel pain and to suffer is proportional to a creature's level of sentience or ability to anticipate future consequences of current events. From that perspective, if a human is suffering grievously or is doomed to suffer from an incurable illness, it might be an act of friendship and mercy to kill him, especially if that's what he has requested. Also, if someone is in a persistent vegetative state, then that human is incapable of feeling pain or suffering, and therefore it is permissible to abuse the body or kill that person.
An ant gathering a particle of food from my kitchen counter, or a termite eating the cabinet, might have more right to life than Terri Schiavo, for many reasons -- the ant's level of sentience is higher, the ant can feel pain, the ant is engaged in purposeful activity, the ant runs away when threatened. Or it might be argued that the ant does not have a soul, whereas Schiavo is created in the image of God and her life must be protected at all costs. It might be argued that I have a higher level of sentience, or am more valuable to God, than the ant; and therefore I have a right to kill the ant to protect my property or my health, or simply for my own pleasure.
It might be argued that if Schiavo is truly in a vegetative state and thus cannot feel pain or fear, then there is no harm in keeping her alive if someone wants to spend the money to do it. Why then should some non-relatives feel it is important to "let her go" when some close relatives are willing and able to care for her for many years to come?
In the search for universal principles from which to deduce practical conclusions regarding life and death, we cannot ignore the issue of animal rights (or even plant rights?) and whether the level of sentience determines the extent of a creature's rights. Indeed, if Schiavo is in a vegetative state but nevertheless has a right to be kept alive, then perhaps I should reconsider whether I am doing something wrong when I send money to a farmer who kills broccoli (a vegetable) for me to eat. Back in Boston I sometimes listened to hear whether the squirming lobster screamed when I dropped it into a kettle of boiling water. Now in Hawai'i I worry whether buying frozen vegetables at Safeway makes me guilty of murder-for-hire in Kansas.
And so we return to where we began. As promised, many questions have been raised but none answered. I have tried to make clear some of the interconnections among various issues. I have tried to raise for serious consideration some questions which might seem either trivial or gruesome, because I believe all such questions need to be taken seriously. They are all interconnected. They all should be decided by each person and by society, on the basis of logical deduction from fundamental principles and after thoughtful meditation and prayer.
RELATED WEBPAGES BY KEN CONKLIN
Abortion and civil rights -- A woman's right to terminate her pregnancy does not necessarily conflict with the right of an unborn baby to live.
Hawaiian Bones -- The 3 Rs -- Rites For the Dead, Rights Of the Living, and Respect for All
NEWS REPORT IN 2013 ABOUT A LAWSUIT SEEKING TO ESTABLISH THAT CHIMPANZEES HAVE THE LEGAL RIGHTS OF PERSONHOOD ON ACCOUNT OF THEIR LEVEL OF SENTIENCE
** This article was originally published in the New York Times and republished in many other newspapers.
Seattle Times, Tuesday December 3, 2013
Group asks N.Y. court to recognize chimp as legal person
The Nonhuman Rights Project, led by Steven Wise, filed papers Monday in New York, demanding that a chimpanzee known as Tommy be recognized as a legal person, with a limited right to liberty. The petition asks the court to remove him from his owners and place him in a sanctuary.
By JAMES GORMAN
The New York Times
This has been quite a year for captive chimpanzees in the United States, with one federal agency taking steps to retire most chimps owned by the government and another proposing to classify all chimps as endangered, an action that would throw up new obstacles to experiments even on privately owned chimps.
Activists have relished their successes, while some scientists have deplored restrictions on the use of the animals, which have played a crucial role in some biomedical research, such as work on hepatitis C vaccines.
All the activity so far has focused on the welfare of the chimps. Now, an animal-rights group has heightened the crusade by taking action to try to establish legal rights for chimpanzees, something far more controversial.
The Nonhuman Rights Project, led by Steven Wise, filed papers Monday in a state court in Fulton County, N.Y., demanding that courts in New York recognize a chimpanzee known as Tommy as a legal person, with a limited right to liberty. The petition asks the court to remove him from his owners and place him in a sanctuary.
Tommy is a privately owned chimp in Gloversville, N.Y., that the group says "is being held captive in a cage in a shed at a used-trailer lot." The group said it intended to file suit later this week on behalf of three more chimps in New York, also demanding their freedom.
Two of the chimpanzees are believed to be owned by the New Iberia Research Center, at the University of Louisiana, Lafayette, but are housed at Stony Brook University for a study of locomotion. The fourth is owned by Carmen Presti, of Niagara Falls, N.Y., according to the rights project, who runs the Primate Sanctuary, a nonprofit organization that displays apes.
Patrick C. Lavery, the owner of Circle L Trailer Sales in Gloversville, where Tommy lives, said he had heard about the petition from reporters. He said from his home in Florida that he had complied with all state and federal regulations, that Tommy had a spacious cage "with tons of toys," and that he had been trying to place him in sanctuaries but that they had no room. He said he had rescued the chimp from a bad situation. He said of the group filing the petition, "If they were to see where this chimp lived for the first 30 years of his life, they would jump up and down for joy about where he is now."
Lavery said he had not seen or been officially notified of the petition.
The use of habeas corpus actions is a time-honored legal strategy for addressing unlawful imprisonment of human beings.
Wise, who has written about the use of habeas corpus in the anti-slavery movement, makes an argument in a 70-plus-page memo rich with legal, scientific and philosophical references that being human is not essential to having rights. He argues that captive chimps are, in fact, enslaved, and that the same principles apply to their cases as to those of humans who were enslaved.
"This petition asks this court to issue a writ recognizing that Tommy is not a legal thing to be possessed by respondents, but rather is a cognitively complex autonomous legal person with the fundamental legal right not to be imprisoned," the court filing says.
David Favre, a professor at Michigan State University College of Law, who teaches animal law but is not associated with the rights project or the legal action, said he was familiar with Wise’s arguments, which he called "a serious legal strategy."
He said such a strategy had not been tried before in the United States. "It is unique," Favre said.
Chimps were granted certain legal rights by the Spanish Parliament in 2008, and efforts have been made in other countries to give them rights.
Wise is not asking the courts to declare the chimps equivalent to human beings. But in New York, animals are considered legal persons to allow them to be beneficiaries of trusts, Wise said. (In a similar way, a corporation is also considered a legal person.)
Because the rights group has set up a trust for all four chimps, they are already legal persons, he argues.
He also marshals evidence from various scientists that a chimpanzee has qualities, including awareness of self, past and future, that should provide it with a right to bodily liberty.
The request is not for the chimps to be set completely free, either in Africa or New York, but to be moved to one of the eight sanctuaries in the North American Primate Sanctuary Alliance.
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SEE OTHER RECENT ESSAYS BY KEN CONKLIN ABOUT TOPICS NOT DIRECTLY RELATED TO HAWAIIAN SOVEREIGNTY
SEE WEBPAGES BY KEN CONKLIN ABOUT HAWAIIAN SOVEREIGNTY ISSUES