The Right to Refuse
This argument is grounded in the idea that you have the right to refuse to let your body be used by others. It thus stems also from bodily integrity, but unlike the Sovereign Zone argument, it does not suggest that you should be free to do with your body whatever you please. Rather, it suggests that other people are not free to do with your body whatever they please; it is an act of defence rather than one of offence. In terms of pregnancy, my understanding is that the argument proceeds along the lines that the embryo or foetus is using the pregnant woman’s body, and she has the right to refuse to let it do so. This right of refusal is exercised through abortion, where the intended outcome is the freeing of the woman’s body from the unwanted usage, and the death of the embryo or foetus is a side-effect.
The most well-known work written on the Right to Refuse is by Judith Jarvis Thompson, in her essay ‘A Defense of Abortion’, where she created the famous violinist analogy. I have reproduced the analogy below:
“I propose that we grant that the fetus is a person from the moment of conception. How does the [pro-life] argument go from here? Something like this. Every person has a right to life. So the fetus has a right to life. No doubt the mother has a right to decide what shall happen in and to her body. But surely a person’s right to life is stronger than the mother’s right to decide what happens in and to her body. So the fetus may not be killed; an abortion may not be performed.
It sounds plausible. But imagine this. You wake up in the morning and find yourself in bed with a famous unconscious violinist. He has a fatal kidney ailment, and the Society of Music Lovers has found that you alone have the right blood type to help. They have therefore kidnapped you, and the violinist’s circulatory system was plugged into yours, so your kidneys can be used to extract poisons from his blood. The director of the hospital tells you, “Look, we’re sorry the Society of Music Lovers did this to you – we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? What if the director says, “Tough luck, but you’ve got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. A person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous, which suggests that something is wrong with that plausible-sounding argument I mentioned a moment ago.”
This analogy has been argued against on several different points, which I’ve summed up below:
- In the majority of cases, the pregnant woman has consented to action that placed the unborn child in its present state of dependence, and therefore has a responsibility to provide for its needs.
- The unborn child has a direct relationship with the pregnant woman, and she therefore has a responsibility to provide for its needs, as it is expected that parents provide for their children.
- Unplugging from the violinist is a misrepresentation of abortion, which involves active killing of the unborn child, not merely passive withdrawal of care*.
- The analogy misrepresents the majority of pregnancies, which do not have as great a physical impact on the life of the woman as being confined to bed for nine months.
(I’ve encountered these arguments in a variety of readings, but they are discussed by Clinton Wilcox in his blog and again at Secular Pro-Life Perspectives. Another critique can be found at Stand To Reason.)
* I will make a quick note on this argument. This concession might be made that medical abortions are analogous to unplugging the violinist, as the process affects only the mother’s body (separation of the uterine lining – and thus placenta and embryo/foetus – from the uterus and then contraction of the uterus to expel the embryo/foetus) and does not directly affect the unborn child. However, in order to make it truly analogous, the violinist scenario would have to be changed to acknowledge that a medical abortion places the unborn child into an environment in which they are not physiologically designed to survive. An analogous outcome would therefore have the violinist being shot into space, or submerged under water upon disconnection.
These arguments can be found in various forms around the internet. But I would like to take another approach; one which takes in the notions of conflicting human rights and justifiable violation of bodily integrity, and attempts to generate a basic underlying principle whereby we can understand the acceptability of disconnecting from the violinist without – by extension – conceding to the acceptability of abortion. When I discussed human rights in conflict, I showed the legitimacy of limiting some human rights in order to preserve others. In my post on the Sovereign Zone argument, I pointed that our bodily integrity can be legally violated for the protection of ourselves AND the protection of other people. These are the two points that I would draw on in the following discussion. In summary:
- Human rights can be limited to protect the rights of others.
- Bodily integrity can be limited to protect ourselves and others.
It might sound like I’ve got the abortion argument sewn up there. However, Thompson presents a strongly intuitive case with her violinist analogy. Would I personally require that someone remain connected to the violinist? I would admire someone who did, but I don’t think – at this point – that I could require someone to stay connected to the violinist. So how can I require a pregnant woman to stay ‘connected’ to the embryo or foetus against her will?
This is where, based upon the two points that I’ve outlined above, I would like to propose a redefinition of the right to refuse. Thusly;
You have a right to refuse the use of your body by other people.
You have a right to refuse the use of your body for the treatment of other people.
This hinges on two things:
- Any ‘right to treatment’ or ‘right to health’ can be limited.
- The usage by the unborn child falls under the category of provision of physiological needs.
To the former, the right to treatment can certainly be limited. In the United States of American, the right to treatment applies only to treatment of an emergency medical conditions, as defined by federal law. In South Australia and Western Australia, the provision of in vitro fertilisation is limited to heterosexual couples – thus excluding singles and homosexual couples. In Australia and New Zealand, liver transplants are not offered to individuals with ongoing alcohol or other substance abuse.
The ‘right to health’ allows that an individual has a right to access to ‘timely and appropriate health care’. Acceptability of the health care is a key component, and rises from the concept of respect for medical ethics. As can be seen in the case of McFall v. Shrimp, it was deemed unacceptable for the bodily integrity of Shrimp to be violated in order to facilitate the treatment of McFall. Put another way, McFall’s right to health could not compel medical treatment that was ethically unacceptable. Similarly, we do not have compulsory organ donations or blood donations. This is because we recognise that treatment of a pathological condition, i.e. prevention of a natural death, is not sufficient to justify violation of bodily integrity.
So why does this not apply to the unborn child? After all, the pregnant woman’s bodily integrity is violated in order for the continuation of the life of the unborn child. I believe that the key to differentiating between pregnancy and the violinist analogy is to recognise that the continued pregnancy does not provide treatment to the child, but rather allows provision of its physiological needs.
We recognise in law the importance of requiring parents to supply for the physiological needs of their children. If parents or caregivers fail to supply the basic needs of the nutrition and shelter to their children (as much as it is within their capability), they are guilty of neglect under the South Australian Children’s Protection Act 1993.
This is not negated even if this provision requires the caregiver to use their body against their will, e.g. if they need to use their body against their will in order to prepare food or construct shelter; or if it infringes upon their right to liberty, e.g. not being able to leave children at home alone or having to interrupt activities that they find enjoyable.
Once born at the appropriate gestational age, these needs are provided to the infant via feeding with breast milk or formula, and environmental control of temperature and shelter. Prior to birth, the physiological delivery of these is through the pregnant woman’s circulation via the placenta. I emphasis ‘physiological’ because I want to make it very clear that supply of these needs does not serve to correct a pathological state in the unborn child, i.e. while the provision of such is essential for health, it does not constitute treatment in and of itself. Hence, while we can uphold the principle of bodily integrity in denying the use of a person’s body to save the dying violinist, we can limit it in the use of a pregnant woman’s body to sustain her unborn child.
As a side-note, it is not only the relationship between a caregiver and a child that makes the provision of basic needs a duty. If a neighbour’s child somehow wandered into my house and became trapped there with me due to a freak snowstorm (not a usual occurrence in Australia), I would certainly then be under a moral obligation to provide for their basic needs, and to refrain from ejecting them from my house into an environment within which they could not survive. I would further speculate that either of these actions would leave me open to being charged with criminally negligent manslaughter. (For a more in-depth discussion of this idea, a .pdf of the De Facto Guardian argument can be downloaded here.)
It’s important to see that pregnancy is not a medical condition that requires treatment, but a physiological condition that is monitored and optimised. If treatment is required during pregnancy, it is because pathology has occurred, such as pregnancy-induced-hypertension. It is akin to way that digestion is not a medical condition that requires treatment, but disorders of digestion are.
In conclusion, I have iterated the ways in which the violinist scenario fails to be analogous, and have introduced a new principle that seeks to balance the rights of the pregnant woman with the rights of the unborn child, while allowing for the intuitive conclusion of allowing disconnection from the violinist.