Michael Tooley’s 1986 essay “Abortion and Infanticide” claims that it is morally permissible to destroy a human fetus or infant, because these organisms do not have the properties that grant them a “serious right to life” (Tooley 57). Tooley defines the conditions necessary for an organism to have a serious right to life, so that he can justify why it is permissible to destroy a fetus or infant but impermissible to kill an adult (Tooley 58). In this paper I will evaluate his argument and determine that it does not advance the current debate on abortion.

Tooley states that “…An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity” (Tooley 82). In other words, an organism that does not possess such a concept of self as a psychologically continuous entity will not possess the desire to be a self, and so it cannot be morally wrong to kill something which does not have the desire to exist. There are some exceptions to this idea that Tooley mentions, which I will discuss later. Tooley defines a person as an organism (not necessarily a Homo sapiens) possessing a serious right to life, and so makes a distinction between a person and a human being (which is a term that encompasses human adults, infants and fetuses—or organisms of the Homo sapiens species) (Tooley 60), asking: “…if the fetus is not a person, how can it seriously be wrong to destroy it?” (Tooley 58-59).

Tooley is inclined to say, however, that organisms who are not persons and do not have a serious right to life, still have rights (Tooley 60). This may sound odd, since we often think of the right to life as the most basic right—a kind of foundation upon which we can add right to happiness, expression, religion, etc. Tooley uses the following example to explain his distinction:

Given the choice between being killed and being tortured for an hour, most adult humans would surely choose the latter. So is seems plausible to say it is worse to kill an adult human being than it is to torture him for an hour. In contrast, it seems to me that while it is not seriously wrong to kill a newborn kitten, it is seriously wrong to torture one for an hour. This suggests that newborn kittens may have a right not to be tortured without having a serious right to life (Tooley 60).

If the newborn kitten does not desire to be tortured, it would be wrong for us to torture it, and so Tooley explains, it would be morally impermissible to subject a newborn kitten to a sensation that it would not want to experience. However, because the newborn kitten does not desire to live (because there it has no concept of what life as a self is), then it follows that a kitten has the right not to be tortured while not having a serious right to life (Tooley 60). For Tooley, the newborn kitten is no more conscious of his self than is a newborn human child, but we will examine this idea further in the paper when we discuss what being conscious of self as “a continuing subject of experiences and other mental states” really means (Tooley 82). To return to Tooley’s example of torturing versus killing a human adult or a newborn kitten, there are reasons to criticize Tooley’s reasoning that because something desires something, that he should have a right to it. This leads us to examine more closely what Tooley means by desires. It should also be made clear that just because a human adult would choose to be tortured rather than killed, as Tooley’s example has us believe, that it is not morally permissible to torture human adults.

Let us now return to Tooley’s notion of desire. I will note that whether we decide to agree or not with Tooley’s definition of desire (or serious right to life, for that matter), this does not affect the more serious concern about whether his conclusions are applicable in any practical sense to the abortion debate. Tooley will say that only certain kinds of organisms/things can have desires. Organisms which are not conscious, says Tooley, cannot have desires, and so cannot have rights: “…it seems to be a conceptual truth that things that lack consciousness, such as ordinary machines, cannot have rights” (Tooley 65). Most basically, Tooley will say that “the desires a thing can have are limited by the concepts it possess” (Tooley 66). This is why a newborn kitten can desire not to be tortured—it can desire not to experience pain, because it know what pain is by feeling it, however, a newborn kitten cannot desire to live, for it does not have a concept of life (Tooley 66). This idea of “concept” is not satisfactorily defined by Tooley, for he will say that the concept of pain can exist without the concept of a continued self, and that “So long as the newborn kitten possesses the relevant phenomenal concepts [of pain], it can truly be said to desire that a certain sensation not exist” (Tooley 83). Can we really say that newborn kittens have a concept of pain, more than a concept of life? We cannot possibly expect newborn kittens to know about the concept of torture before or even after it may have experienced torture. However, if we assume his definition of desire to be true, then it follows that something is to be “capable of having a desire to continue existing as a subject of experiences and other mental states” if it possesses a concept of this kind of existence (Tooley 66). This is why we are inclined to say that ants do not have a serious right to life—they do not possess a concept of existence.

To summarize: “To ascribe a right to an individual is to assert something about the prima-facie obligations of other individuals to act, or to refrain from acting, in certain ways. However, the obligations in question are conditional ones, being dependent upon the existence of certain desires of the individual to whom the right is ascribed” (Tooley 64). To apply this idea to abortion and infanticide: it is the right of fetuses or infants to assert that individuals must refrain from killing them only if the fetus or infant possesses the desire not to be killed. There are three exceptions to this claim, identified by Tooley, which can be understood in the case where something does not desire what it has the right to: for example, an adult human who does not desire to live still has the right to live. In the following cases, the individual has the right to certain things, even if he does not desire them:

…(i) situations in which an individual’s desires reflect a state of emotional disturbance; (ii) situations in which a previously conscious individual is temporarily unconscious; (iii) situations in which an individual’s desires have been distorted by conditioning or by indoctrination (Tooley 67).

Tooley also wants to make clear that the possessing a right to life does not simply mean the “continued existence of a biological organism” but rather the continued existence of that organism’s psychology, so that a person’s right to life guarantees a right not to have his mind wiped and memories erased, even if his body is kept intact (Tooley 82). This ties in very closely with John Locke’s notion of personal identity, which is that personal identity or the self is “founded on consciousness (viz. memory), and not on the substance of either the soul or the body” (Nimbalkar 268).

Though there are places in Tooley’s argument that demand further examination, this paper will evaluate whether, assuming that all of Tooley’s claims are true, Tooley is justified in saying that abortion and infanticide are morally permissible. Even if we agree that Tooley’s argument is coherent, it is conditional on the ability to recognize whether a fetus or infant is a person. It is perhaps possible, in theory, to imagine that fetuses and infants do not possess a sense of self—and indeed, our experience tells us that newborn babies have very little conception of anything, let alone of life. However, it is not possible, given the current state of technology, and it may never be possible to recognize when and whether fetuses and newborn babies possess a sense of self. We do not have access to a baby’s psychology, and no matter how advanced our technological resources become, we may never be able to know what the subjective experience of any organism is. We want to be able to say that though we cannot identify self-consciousness in people with “locked-in syndrome,” a state of total or near-total paralysis that precludes most forms of expression, they still have a serious right to life. If we cannot identify whether or not fetuses or infants are self-conscious, we cannot determine whether or not they have a serious right to life or not.

Tooley himself agrees that a self-conscious person does not have to speak, or express his self-consciousness intelligibly in order to be self-conscious, and for this reason he asserts that some adult animals may be considered persons:

For once one says that an organism can possess the concept of a continuing self, together with the belief that it is itself such an entity, without having any way of expressing that concept and that belief linguistically, one has to face up to the question of whether animals may not possess properties that bestow a serious right to life upon them (Tooley 84-85)

Our knowledge about animals possessing “the concept of a continuing self,” which forces us to question whether some animals have a serious right to life, comes from evidence derived from anecdotes or tests that do not reliably confirm who does and does not possess self-consciousness. For example, there was a recent story about a cat that came to the rescue of a young boy who was being attacked by a large dog, by catapulting his own body towards the dog in order to free the child whose leg was caught between the canine’s jaws. (Eisler and Bhattacharjee) This act of altruism surely shows the cat to have concept of self-similar to that of what Tooley describes. Altruism shows understanding of the concept of a self, because it is a concern for the welfare of another self, implying the understanding of another self in relation to one’s own self. However, we cannot recognize self-consciousness in those organisms that don’t have the capacity to display it. Though we may identify the behavior of the cat as altruistic, we cannot be sure of his true motives—it is possible that he imagined there was a mouse on the dog and in a moment instinct, he ran after it, coincidentally knocking the dog away from the boy. This is an unlikely scenario; however, it highlights how those tests that appear to give us information about the subjective experience of an organism, do not.

In the field of psychology, many tests have been developed to try to give an account of the subjective experience of an organism based on his behavior. The mirror test, for example, is used to evaluate the self-awareness of an animal: an animal (such as a monkey, dolphin, or African grey parrot—all of whom have responded to the test) is sedated and marked with either paint or light, which he can only see if he has access if in front of a mirror. If upon waking up, the animal interacts with his own body (brushes away the mark with his hand, or swims around the mirror longer than the others) then this proves that he has made the connection between the reflection he sees in the mirror and his own body. This test provides evidence for the existence of a personal identity for those animals that respond to the test, however, it is not powerful enough to disprove the existence of a personal identity in other animals. For example, any blind animal (or animal who does not rely on his visual faculties) would not flinch before a mirror—not because he lacks a knowledge of self, but because any test is dependent on certain basic physical properties of the subject. This is not a fault of the test—it is a condition of the physical world.

These kinds of tests exist for babies throughout their growth and development, and these rank the significance of the ability of a child to respond to her own name, display certain kinds of behaviors and perceptual capacities, and express likes and dislikes (Holinger). These are significant moments during the development of an organism, however they only indicate visible development—behavioristic evidence for psychological development. As a result, we have no certainty about when self-awareness develops in babies, simply because we do not have access to that kind of information:  “The neurobiological and psychological triggers for self-awareness have not yet been clarified. What we do know is that this occurs around 1 to 3 years” (Holinger). Tooley expects that we will be able to rely on such psychological tests to determine whether an infant is a person or not—though he acknowledges that the information is not known with great accuracy, he is convinced that if he chooses a cutoff point of one week after birth, so that an infant can be killed if he is under one week old—he makes this claim based on psychological and experiential evidence (Tooley 82). This year we may believe that babies develop self-awareness between 1 and 3 years, but with the future development of technology and tests, this estimation may change—how can Tooley expect us to ground such an important decision such as how to determine whether a human being has a serious right to life on such volatile evidence?

In “What Is it Like to Be a Bat?” Thomas Nagel presents an argument for why is may not be possible for us to ever access the subjective experience of others (Nagel 1). This is not an argument against physicalism (which states that mind and body are made of the same “stuff”). Nagel’s claims are accommodating of Locke or Tooley’s view that psychological continuity is what defines personal identity. However, because our psychologies are dictated by the way we are wired, we may never be able to grasp the concept of what it is like to experience things as someone else; the unique way we are physically configured determines the unique way in which we are psychologically configured. Nagel uses the bat as an example of an organism that we will never know what it is like to be:

I have said that the essence of the belief that bats have experience is that there is something that it is like to be a bat…. Their brains are designed to correlate the outgoing [sonar] impulses with the subsequent echoes, and the information thus acquired enables bats to make precise discriminations of distance, size, shape, motion, and texture comparable to those we make by vision. But bat sonar, though clearly a form of perception, is not similar in its operation to any sense that we possess, and there is no reason to suppose that it is subjectively like anything we can experience or imagine (Nagel 2).

Can we apply this idea to the developing fetus or the growing infant? If we are limited by our technology, and do not possess the “form of perception” (i.e. the “wiring”) of a small human being, and we are able to access their subjective experience, how can we know whether a small child is self-aware or possesses a particular psychological narrative? Can we really say that we have better access to the psychology of newborn kittens rather than adult cats that run to young boys’ rescues? Though we can still accept Tooley’s idea that understanding of one’s own psychological continuity is necessary to determining the moral permissibility of abortion and infanticide, we cannot practically verify and so implement his ideas about what defines a serious right to life.

Given this critique of Tooley, it must be said that his argument does not advance the debate for or against abortion, since it rests on the assumption that we will be able to demonstrate that self-consciousness does not exist in fetuses and/or infants. We therefore return to the original questions of whether or not the fetus is a person, and so if he has a serious right to life.

Works Cited

Eisler, Geoffrey, and Riya Bhattacharjee. “Family Cat Saves Boy From Dog Attack.” NBC Bay Area. NBC, 21 May 2014. Web. 27 Jan. 2015.

Holinger, Paul C. “Self-Awareness.” Great Kids, Great Parents. Psychology Today, 19 Nov.  2012. Web. 23 May 2014. < https://www.psychologytoday.com/blog/great-kids-great-parents/201211/self-awareness/comments >.

Nagel, Thomas. “What Is It Like to Be a Bat?” The Philosophical Review 83.4 (1974): 435. Web.

Nimbalkar, Namita. “John Locke on Personal Identity.” Mens Sana Monographs 9.1 (2011):  268-75. US National Library of Medicine. Web. 23 May 2014.

Tooley, Michael. Applied Ethics. Ed. Peter Singer. Oxford: Oxford UP, 1986. Print.