The Key to Abortion and Stem Cell Ethics: Fetal Viability


By: Dr. Chuck Ormsby – September, 2004

Few topics are as emotionally laden as the issue of abortion. Such emotion often spills over to discussions (typically yelling matches) of the embryonic stem cell issue. Politicians see this as fertile territory for demagoguery and they attempt to take full advantage of the opportunity. It is time to try to lower the volume and consider these issues in a more sober fashion.

The linked article by Paul Murano (“The Science President”) presents a valid criticism of Sen. Kerry’s illogical position on abortion (“Life begins at conception but anything goes when it comes to abortion.”) and correctly notes the ethical issues of using taxpayer dollars to fund stem cell research when many taxpayers consider such activities (rightly or wrongly) to be immoral.

In the course of his argument Mr. Murano dismisses using fetal viability as a critical factor in fetal rights arguments, saying that “viability arguments” were unscientific.

This short rebuttal of Mr. Murano’s dismissal of viability arguments is presented to establish a dialog on the ethical issues surrounding abortion and embryonic stem cell research. Mr. Murano (and others capable of rational consideration of these issues) are invited to respond to these comments as part of a continuing discussion … hopefully in a manner that sincerely attempts to illuminate the ethical issues involved and helps our readers come to their own conclusions on these complex and divisive issues.

First, what is the “viability argument”? Here is a condensed summary of my version of the viability argument (there, almost certainly, are other variants):

While a fetus may be a human life from the moment of conception, it has no legal claim on the body or resources of its mother. Just as a patient who needs a kidney transplant cannot demand to take your kidney (or anyone else’s), a fetus cannot demand that its mother continue to give the fetus the environment needed for its continued development.

Therefore, prior to the point at which it is possible for the fetus to survive without the cooperation of its mother, it will expire if its mother withdraws her support (no different than denying a kidney) and the law should not compel the mother to continue supporting the fetus. Once the fetus can survive without its mother (even if such survival is based on use of extraordinary methods), the mother may remove her support but may not, in the process of removing that support, unnecessarily impair the fetus’ potential for continued survival. She may not unnecessarily harm the fetus’ survival prospects because the fetus has the right to continue its life as long as it can do so with the voluntary support/aid of others … i.e., it does not require the compulsion of others.

How would this work in practice?

Who would represent a viable fetus’ legal interests? While we clearly can’t know the desires of the fetus in these matters, since the fetus is a living human being it should be treated as any young child would be treated if it needs legal representation: The court should appoint a legal representative that would protect the fetus’ best interests.

How would the extraordinary expenses of supporting the fetus be funded? Clearly they should not be taxpayer-funded … that is just another version of compulsion. Financial resources for such fetal support must to be voluntarily offered to the fetus. [Aside: While not necessary, one source of such voluntary support may be the father. Currently disenfranchised in such matters, if the viability argument is accepted, the father now has an option for influencing the survival of a fetus that he fathered, at least after the point of viability is reached.]

Who has financial responsibility for the child that emerges from this process? Whoever takes on the burden of paying for supporting the fetus’ development would have the legal responsibility for supporting the child unless another party voluntarily accepts such responsibility.

What are the implications of this argument on abortion and stem cell issues? Abortions and extraction of stem cells would continue to be legal prior to viability. Anyone who is willing to pay for the continued development of a viable fetus after a mother declares she intends to abandon it, are free to do so as long as they agree to take on the legal responsibilities currently imposed on parents. Private funding of embryonic stem cell research remains legal.

Mr. Murano argues that the “viability argument” is not scientific and depends on “faith”.

My response to this is two-fold. First, legal issues surrounding human rights (the fetus’ rights, the mother’s rights, the father’s rights, etc.) are not inherently scientific issues. They are political philosophy issues. Science can play a role in sorting out these issues but it is not typically the exclusive (or even a predominant) consideration or determining factor.

That being said, what is not scientific about viability? The fetus is either capable of survival without its mother or it is not. What is not scientific about the existence of someone willing to pay for the attempt to nurture the fetus and the resulting child if the mother decides to abandon it? Do an experiment: Hold a court hearing and see if someone shows up with a checkbook. That is pretty scientific!

The viability argument gets us away from faith, compulsion, and social engineering. It recognizes the rights of the mother and the rights of the father, and it protects the fetus’ right to live if it can do so with the voluntary cooperation of anyone willing to help. It provides a perspective that is worthy of being given more careful consideration than it was given by Mr. Murano in an otherwise excellent discussion of the political battle over stem cell research.