When is a creature a person?
That really is the question the Supreme Court justices felt was most crucial in order to decide whether the reproductive health law is constitutional or not. It is not the newspaper headline “When does life begin?”, since obviously even a spermatozoa or an egg on its own is already a living thing.
For Catholics, the one-celled zygote, 2 millimeters in diameter (formed minutes after the male sperm and female egg fuse), is already a person, and therefore preventing it from growing to become an embryo and then a fetus is murder. And so my esteemed colleague and former senator Francisco Tatad deplores all contraceptives as resulting in “mass killings” and “genocide”, which if his logic were right would make Hitler and Stalin appear like rank amateurs, and would require the International Court of Justice decades to try the villains.
Obviously since calling a zygote a person sounds not too untrue, Catholics – and the Constitution itself – use the term “unborn,” a word-trick in the manner of calling zombies and vampires the “undead”.
The US Supreme Court’s landmark 1973 Roe vs Wade decision implicitly defines the person only when the fetus becomes “viable,” “that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” You read that right, six to seven months, which is the reason the decision has made abortion legal in America, with limits to be set by each state.
Unborn zygote, left, and the Undead, right, from zombie movie “Warm Bodies.”
Technical as it may seem, it is an ancient question over which humanity still doesn’t have a consensus, yet which so fascinates us since it really asks us: “What makes us human?”
It is the hidden theme of so many movies and science fiction. Why do we like zombie and vampire movies? Because these titillate our imagination since it is ambiguous whether these creatures are still persons, or whether they can ever recover their personhoods, for zombies, by the discovery of a serum to kill the virus that caused it, and for a vampire, as in the case of Bam Stoker’s Dracula by his embracing God.
The many hit robot movies such as the classic Blade Runner, A.I., and Moon are also explorations into the question: When does a creature become a person, and therefore immoral to kill it? The 2010 tearjerker movie, “Never Let Me Go”, based on Kazuo Ishiguro’s hit novel, is an indictment of cloning, that it will inevitably have to deny personhood to a human clone.
In religious or metaphysical terms, the question is posed as: When does “ensoulment” occur, that is, when does the zygote or the blastocyst (the entity it becomes after five days) or the embryo acquire a soul?
The Bible is not too clear on when ensoulment occurs, although Leviticus 27:6 doesn’t even put a value on infants less than a month old, nor does Numbers 2:15-16 recognize them as members of a family. The fifth-century Christian theologian St. Agustine distinguished between “embryo inanimatus” (without a soul) and an “embryo animatus” (with a soul) although he concluded that the limited faculty of the human mind cannot know when the ensoulment occurs.
From the medieval ages up to the 19th century, Christian theology and canon law even implied that males got their souls much earlier than females: that the fetus became a person 40 days after conception for males and for females, 80 days. That was the basis of English common law which prescribed that the fetus became a person from the 16th to 18th week of pregnancy, since it prescribed no indictable offense if abortion is undertaken before this period. (These fascinating details are in the Roe vs Wade decision.)
Present Catholic dogma departed from that view only in the 20th century, although it hasn’t categorically declared whether the zygote is already a person or has a soul. What it actually says: “Maybe it does, maybe it doesn’t. But just to be safe, let’s treat it as a person.” This is what the 1974 “Declaration on Procured Abortion” by the Congregation for the Doctrine of the Faith said in so many words:
“The fruit of human generation, from the first moment of its existence, that is to say from the moment the zygote has formed, demands the unconditional respect that is morally due to the human being in his bodily and spiritual totality.”
“This declaration expressly leaves aside the question of the moment when the spiritual soul is infused. There is not a unanimous tradition on this point and authors are as yet in disagreement. For some it dates from the first instant; for others it could not at least precede nidation (implantation in the uterus). It is not within the competence of science to decide between these views, because the existence of an immortal soul is not a question in its field.”
Far fetched (at least to me) that the nearly microscopic zygote is a person, the idea has been championed by a political movement in US “Red States” intended to overturn the Roe vs Wade decision, called Personhood, USA which has even succeeded in undertaking referendums—unsuccessful though —in Colorado (twice, in 2008 and 2010) and in Mississippi in 2011.
These groups want their state constitutions amended in the way the 1987 Philippine constitution in effect declares as a person “the unborn from conception.” Mississippi voters in 2011 were asked the question: “Should the term ‘person’ be defined to include every human being from the moment of fertilization . . . ?” Quite significantly, such a referendum in Georgia approved such an amendment with 75 percent of voters agreeing to it.
American observers though have pointed out that if ever the zygote is declared a person, which it logically should be if the Catholic belief that it has a soul is right, a host of legal problems bordering on the absurd would rise: the need for death certificates for zygotes that died (which is estimated to number thousands for one female during her fruitful years), the reclassification of zygotes as dependents (deserving bigger tax exemptions), the need for declaring that “third person” in ships’ and airlines’ manifests, and police investigations and court trials against those whose actions led to the death of a zygote.
Or do these absurdities simply reveal the claim’s fallacy?
But since we already have a constitution that declares the zygote a person, will we logically have to confront these legal issues, or else weaken the Constitution’s integrity by ignoring one of its provisions? Or is that provision of the Constitution on the unborn, untrue, a work of fiction just like zombies?