Article by Elizabeth G. Patterson
The question of when life begins has been a recurring theme in the national dialogue at least since 1973 when the U.S. Supreme Court recognized abortion as a constitutional right. In Roe v. Wade, the Court surveyed religious, philosophical, and medical views on the subject, only to conclude that the question could not be answered. The Court had no difficulty, however, in finding that the word “person,” as used in the Constitution's Due Process Clause, applied only from the time of birth, a ruling that has never been disputed by any member of the Court.
Following Roe, the question of when life begins took on a new identity as a legal issue and generated a decade-long effort to amend the Constitution to extend protection to all humans from the moment of conception. Although this effort failed, the debate about human life remains a part of legal and political discourse as a basic referent in the continuing abortion controversy. The durability of the issue is manifest in the Supreme Court's repeated reconsideration of the basic holdings of Roe, most recently in the 1992 case of Planned Parenthood v. Casey.
The concept of human life as determinative of appropriate treatment for human entities whose legal or moral status is questioned has arisen in contexts other than abortion. Prominent recent controversies include arguments that persons in a persistent vegetative state or other condition of permanent unconsciousness, and anencephalic newborns, should be considered “dead,” in one case obviating the legal necessity for further health care, and in the other allowing the removal of organs for transplant. The question has also affected public policy on the permissibility of medical research using fetal tissue, the disposition of frozen embryos created in the process of in vitro fertilization, and the legal treatment of persons who wrongfully injure or kill a fetus.
The debate about when human life begins and ends appears by its terms to assume the existence of a set of rights that inheres in all persons. “Persons” are equated with living human beings. Hence, nonhumans do not possess these rights, and possession of rights by humans is tied to a distinction between life and nonlife. A human who has died, by either traditional definitions or newer brain-death criteria, or a human who has not yet been born, reached viability, or satisfied some other criterion for the beginning of life, is not considered a person in whom human rights inhere. The public debate also focuses on “rights,” particularly constitutional rights, as the denominant of legally protected interests. Without human life, there are no rights; and without rights, there are no legally guaranteed claims.
The simplicity of this formulation masks extremely complicated issues concerning the allocation of legally protected interests among members of the human community. First, as the Supreme Court recognized, the human life criterion is incapable of definition and is probably meaningless. There is no single point at which human life begins—life is a continuous process, passed from parent to child. The time at which the living cells of the parents evolve into a new and separate life cannot be precisely identified, as witnessed by the wide variety of suggested criteria for doing so.
The termination of rights at the other end of the life cycle is equally problematic. Even a person who is dead under the traditional heart and lung standard is not totally dead. Living cells and certain primitive functions persist after all heart and lung activity has ceased. A brain dead person has additional indicia of life. Indeed, one of the reasons for recognizing this condition as death is that certain organs and tissue continue to live and are suitable for transplantation after the declaration of brain death. The bodies of anencephalic newborns and persons in a state of permanent unconsciousness possess even more indicia of life.
Characterizing the debate as a debate over when personhood, rather than life, begins seems to be an improvement, because this shifts the focus from the characteristics of cells within the organism to characteristics of the entire organism and its capacity to function within the human community. However, it retains an all-or-nothing perspective on rights allocation that is inherently flawed. There is not a defined set of rights that is held by every living person and by no other entity. Rather, rights vary between categories of persons depending on their possession of attributes that form the basis for particular rights. Variations in mental capacity, for instance, lead to variations in rights related to autonomy. Furthermore, rights, even those generally referred to as human rights, can be possessed by entities other than living humans. Thus, there is no clear correlation between a life or non-life characterization and the possession or nonpossession of rights.
Finally, interests or claims that may be thought of as “rights” by the public need not be given this label in order to receive legal protection. For instance, in the same opinion in which it held that a fetus is not a person and thus has no constitutional right to life, the Supreme Court also held that states have an interest in protecting the potential life of a viable fetus that is capable of outweighing the pregnant woman's right to choose abortion. The practical effect of this holding has been essentially the same as recognizing a viable fetus's right to life. Other mechanisms for recognizing legal interests of a human who is not technically regarded as a rights possessor include treating the interest as a right of others, such as the human's next of kin, or as a right of the person that the human once was or will become. Those who craft the law have various reasons for choosing among these methods for protecting legal interests. Some are symbolic, relating to public perceptions and sensibilities; others are practical, involving selection of the legal category with effects most closely matching those that are desired. The terminology of “legal interests” will be used in this Article to encompass any of these mechanisms for providing a legal benefit to a human entity.
Human existence should be perceived in rights discourse, as it is in science, as a continuum, not as a sharp divide between living persons and other humans. As the human being moves through the life cycle, the legal interests that it possesses are periodically altered in recognition of changes that significantly affect its ability to exercise those interests, its relationship to other interest holders, and other attributes fundamentally affecting its status as an interest holder. The legal interests of humans, to borrow an analogy from property law, are like a bundle of sticks, and different persons possess different “sticks.” The sticks possessed by an intermediate life form such as a fetus should not be identical to those of any other human, because the fetus is uniquely situated in ways relevant to the allocation of legal interests.
About the Author
Elizabeth G. Patterson. Professor of Law, University of South Carolina; Member, Oregon State Bar Association. B.A., Agnes Scott College, 1968; J.D., University of Arizona, 1976.
Citation
68 Tul. L. Rev. 1527 (1994)