Kermit Gosnell and Infanticide

by Benjamin Studebaker

Perhaps you have run across the sad tale of Kermit Gosnell, the American doctor who provided abortions on the cheap to desperate women and failed to follow medical procedure. Among his alleged crimes are illegal prescriptions, corruption, illegal abortions, medical malpractice, and, most famously, the murder of a patient and seven newborn babies. I ran across an interesting line on Facebook pointing out that it is rather arbitrary how if we kill a foetus one day, it’s a late term abortion, and if we kill it five days later, it’s murder. It does strike me that the distinction is rather arbitrary, and that this is a contradiction. So which is it? Is abortion wrong, or is infanticide okay?

One of the central principles in my moral theory is reciprocity. A few days ago, I considered reciprocity in the context of what our obligations to future people might be. Reciprocity helps us to determine to whom we have moral obligations and to whom we do not. It does not, on its own, tell us anything about what those obligations might be. If we are in reciprocal relations with a being, that being is part of our moral community. As a member of the moral community, the being has duties to us, and we to it. When we are determining who is part of our moral community and who is not, we ask two questions:

  1. Can the being reciprocate or will it have the potential such that a social investment is worthwhile?
  2. Is the being willing to reciprocate or is it likely to become willing in future?

We ask these questions rather than indiscriminately include all beings in our moral community to prevent being taken advantage of. If I am just as obligated to consider the interests of someone who returns that concern as I am someone who does not, I am liable to end up enslaved or subjugated to another being who is willing to immorally exploit me. I wish to prevent this kind of exploitation of the moral by the immoral, and so I introduce this principle of reciprocity to define whom we are obliged to take into consideration when making moral decisions and whom we may leave out.

If we believe the answers to both questions are yes, we are obliged to admit a being into our moral community. In practise, the moral community is typically the state. The state may contain smaller sub-communities within it, the members of which have special duties to each other (provinces, counties, cities, neighbourhoods, families, groups of friends, all could be such groups).

The state asks these questions, or questions similar to them, when it is deciding whether or not to permit immigration. If a foreigner wants access to our state, we evaluate the foreigner in question and determine whether that foreigner is capable and willing of doing his part in our society, of reciprocating. It is wrong to exclude willing and capable foreigners, but it is also wrong to include the unwilling or the incapable, as doing so would impose an unfair cost upon the citizens of the state in question.

In that post from a few days back, I said that future people were similar to immigrants, but I also noticed that we do not at present treat them in the same way. The state does not have the opportunity at present to answer these questions about the offspring of its citizens or to issue a decision either way. Most modern states do not regulate family planning to any significant degree. Historically, this was not always so. The Greeks and Romans famously exposed deformed or defective babies to the elements so as to avoid imposing costs on the family and the state. Plato advocated the raising of children in commune by the city-state in The Republic. Whether we’re talking about infanticide or the state as caregiver, in both cases we have a rather odd principle at the heart of the idea–that the state has a legitimate stake in who is born and who is not, and in the manner in which said individuals are raised.

Elements of this view survive. The state will not permit you to do just anything to your children for precisely this reason. We all have a stake in the outcomes of the members of the moral community, and if a fellow beats his child to psychological or physical uselessness, such that the rest of us will be left caring for the child in some way or another for decades, the wider community is left holding the bag. The bad parenting will have made reciprocity impossible, but by then it is too late–we have already accepted the child into the moral community and, as a group, taken responsibility for his welfare.  We owe duties to abused children and cannot discard them purely because the abuse they have suffered may make them incapable of reciprocity.

This implies that a decision must be made about babies in the same way that a decision is made about immigrants. Not every immigrant we admit will reciprocate. When we decide whom to admit, we are, as a community, placing a bet. We are saying that it appears this person is willing and capable of reciprocating, and we therefore admit them. In some cases admission of immigrants is provisional and can be revoked if the immigrant in question fails to reciprocate, but at a certain point citizenship is granted. After that point we simply offer the same incentives to reciprocity and disincentives to unsociable behaviour that we offer to our other citizens. The threat of expulsion falls away, because all citizens must be given equal consideration by the state.

In the same way, the state needs to make decisions about what sort of babies are likely to be capable of reciprocity and what sort are not. Insofar as the state is still determined to leave parenting to parents and not attempt to raise children itself (and, given its track record for foster homes and orphanages and the negative connotation “ward of the state” carries, it seems sensible that the state would seek to avoid that challenge), it must also take on board the family’s right to deny a child into its subset of the wider moral community. If Bob and Mary have a kid and the state decides that Bob and Mary’s kid will likely be suitable for reciprocity, it still must respect Bob and Mary’s unwillingness to permit that child access to their resources. The state could offer to raise the child itself or place it elsewhere through adoption, but insofar as this would create an inconvenience for Bob and Mary, the state might be obliged to compensate them for going through the trouble of carrying the baby to term.

But all of this still does not answer the central question. Is it permissible for the state to kill babies? To answer this, we need to know when the optimal time is for the decision to be taken as to whether or not the child should be admitted to the moral community. To know that, we have to answer the two questions. At what point during a pregnancy can we know the answers?

Certain birth defects remain impossible to detect in many cases prior to birth. Given that birth defects comment substantially on a being’s capacity to reciprocate, it stands to reason that there may be some cause for making the final judgement of admission after birth–which would entail permitting infanticide. However, other potential concerns can be addressed earlier. Say, for instance, we adopted the following procedure:

  1. Upon becoming aware of a pregnancy, the family is required to notify a doctor, who is in turn required to notify the state.
  2. From that date, regardless of when during the pregnancy it is, the family and the state each have a fixed span of time (say, for instance, a month) in which to determine whether or not they wish to provisionally admit the baby into the moral community.
  3. If the state declines, abortion/infanticide is required. If the state accepts, the family may veto. If the family vetoes, the state can accept that veto (and the abortion/infanticide it entails) or it can offer to take charge of the baby and offer the family an incentive for carrying the baby to term. The family has the final option of accepting or rejecting the incentive barring some sort of emergency scenario (say, a population crisis in which the state desperately needs every baby to prevent extinction/social collapse/some calamity). Assuming no calamity, if the family rejects the incentive, abortion/infanticide is required.
  4. If however a provisionally accepted baby is brought to term only to reveal that it has some terrible affliction that makes the decisions made to this point unfounded, the provisional acceptance may be revoked by either the family or the state. If the family and state disagree, use the decision procedure above.

As an illustration, here we have the Foetus Flow Chart:

Foetus Flow Chart


A procedure like this one ensures that the state has the opportunity to vet potential future people to determine whether they really are likely to be willing and capable of reciprocity. I should point out that the only grounds under which the state would be permitted to reject a baby on this theory would entail some credible reason for believing that the baby in question would be more costly to society than productive. The state could not reject babies merely because they seemed insufficiently smart or wonderful in some way–it would have to believe the baby incapable of reciprocity, likely due to some obvious genetic disorder or birth defect. Plenty of people who are not the very cleverest or very best at one thing or another are capable of reciprocity, and it would be unjust for the state to deny those people the opportunity to procreate if they so desired unless it was experiencing serious overpopulation. In other words, there is no obvious slippery slope leading from here to Brave New World.

Adopting this model would require significant changes to policy from the state. At present, the state abstains entirely from the decision-making procedure and permits the decision of whom to permit entry into the moral community to fall to families. The status quo is morally equivalent to permitting one’s citizens to sneak foreigners into the country, granting citizenship to all who make it inside. It’s an abdication of the state’s responsibilities, and the state’s queasiness about respecting the faux separation of the public-private spheres is no excuse  for its lackadaisical attitude.

And of course, it would require all of us to recognise that there really is no significant difference between abortion and infanticide and that, if we are going to permit the former, we need recognise that, rightly understood, it entails the latter. A tall order, particularly during a time in which many people still think no one ought to regulate access to the moral community at all, not even the families themselves. There remain opponents of birth control, after all. So, at least as long as we’re making this decision democratically, I very much doubt our capacity for progress on this front. But still, it’s a fun thought experiment, is it not?