Eric Posner Reviews 'The Law of Life and Death'

The Beginning and The End
Eric A. Posner
The New Republic
June 23, 2011

The Law of Life and Death
by Elizabeth Price Foley
Harvard University Press, 312 pp., $29.95

In eighty years or so, the average American goes from blob to person to blob. The middle phase of this continuum jangles with the bells and whistles of personhood—rights, interests, human dignity, legal protections, the works. The blobs are, at one end, an invisible bunch of cells and, at the other, a mass of putrefying flesh material. The blob-person and person-blob transitions give ethicists, legislators, and judges a great deal of trouble. How does the law keep up as the initial blob advances to human being, and then the human being degrades to blobness?

In an earlier era, perhaps, things were simpler—you were either alive or dead, though the status of the fetus has always given people trouble. Today, science has broken down the blob phases into minute intervals: conception, the development of the embryo, its attachment to the uterine wall, the emergence of electrical activity in the fetus’s brain, viability, birth; and then, on the other end, the gradual petering out of brain activity. The distinctions matter. Killing a human being is murder; discarding unwanted cell tissue is not.

Familiar culture-war controversies have erupted over these issues. The law embodies uneasy truces and compromises, and, as is always the case, contains ambiguities and inconsistencies; and state laws vary a great deal. But a rough logic has emerged. The gestational blob gains stronger legal protections as it ascends the ladder of development. Sperm, eggs, and embryos lack rights; their owners enjoy the power to control how they are used. Fetuses do better. A woman may not abort the fetus late in pregnancy without good reason, such as risk to life or health, and a stranger commits a crime by assaulting and killing a fetus because the fetus has stronger rights than the stranger does. But the assaulter is not guilty of murder unless the fetus, in an odd turn of the law, manages to get born before it expires from its injuries. A partially born child enjoys stronger rights still.

Faculty: 
Eric Posner