Two years ago, many people were shocked by the publication of a medical ethics paper arguing for the permissibility of “after-birth abortion” (i.e. killing a healthy newborn) by two bioethicists, Alberto Giubilini and Francesca Minerva. Reactions to the paper were quite varied, ranging from complete denial (“Surely these guys are just playing devil’s advocate”) to total outrage, including some death threats to the authors. Thankfully, no matter where people landed on the abortion issue, most everyone disagreed with Giubilini’s and Minerva’s conclusion, including the editors of the Journal of Medical Ethicsin which the paper was published. The editors attempted to justify their decision to publish the paper by saying the journal “supports freedom of ethical expression,” so long as it is in the form of a rational argument. While I agree with the editors that Giubilini and Minerva have a right to their “ethical expression,” new studies in baby cognition now cast doubt on a key assumption of their argument, which not only confirms the absurdity of their conclusion, but has the additional (and ironic) consequence of making their “ethical expression” unethical.

In their original paper, Giubilini and Minerva argue that,

‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled… Both a fetus and newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life.’  We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her… [A]ll the individuals who are not in a condition of attributing any value to their own existence are not persons.  Merely being human is not in itself a reason for ascribing someone a right to life.

The idea that fetuses and newborns are not actual persons yet is not original to Giubilini and Minerva. They’re building on arguments offered decades ago from philosophers such as Michael TooleyPeter Singer, and others. Most of these arguments define a person as an individual who is capable of making value judgments, especially moral value judgments, or who can formulate goals. Under this definition, fetuses and newborns are not actual persons (only potential) because they’re not yet capable of doing such things…or so we thought.

CNN recently reported on studies from Yale University’s Infant Cognition Center (a.k.a. “Baby Lab”). Watch one of the absolutely fascinating reportshere. Babies as young as 3 months old were entertained with puppet shows featuring both a “good” character and a “bad” character. The babies were then offered a series of choices to interact with the two puppets, such as accepting or taking a cookie from one of them. Over 80% of infants display a preference for the good puppet (this number increases to almost 90% in the youngest infants), and even choose to “punish” the bad puppet when given the chance, suggesting that babies have a sense of justice. As CNN reports, these observations lead the Yale researchers to “believe babies are in fact born with an innate sense of morality, and while parents and society can help develop a belief system in babies, they don’t create one.”

This has tremendous implications for the aforementioned view of personhood offered by Giubilini, Minerva, Tooley, and Singer. Assume, for the sake of argument, that their definition of personhood is correct (I don’t think it is, but let’s pretend). If the Yale studies are valid, then there are good reasons to believe infants are born with the ability to make value judgments. But if babies can make moral value judgments, how do we know they don’t also value their existence in some way? We don’t know. Herein lies the problem. The Yale studies raise grave doubts about the claim that newborns are not persons. So, the question then becomes, “What level of certainty that newborns are non-persons do Giubilini and Minerva need in order to ethically argue that it is okay to kill them?” To understand where I’m going with this, consider the following thought experiment:

Imagine Smith goes deer hunting with Jones. Both are aware of the possibility that there are other deer hunters in the area. Smith hears a noise in the bushes and points his rifle, ready to shoot. He hesitates and asks Jones, “What if it’s a person?” Jones replies, “The chances are slim. Go ahead and shoot.” Considering the fact that Jones does not know for sure if it’s a person, is it ethically responsible of him to tell Smith to go ahead and shoot? The obvious answer is no.

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