Do the unborn have a right to life? A translation of Robert Spaemann’s 1974 article.

Article 2 of the Charter of Fundamental Rights...

Article 2 of the Charter of Fundamental Rights of the European Union (Photo credit: Wikipedia)

The article below appeared as a follow-up in 1974 to Robert Spaemann’s earlier article that year on the subject of abortion, “Am Ende der Debatte um §218 StGB” (my translation is available here). In that previous article, Spaemann had rather magisterially declared that the intellectual debate about abortion in Germany was drawing to a close. Despite this, Giselher Rüpke subsequently published an article which, in Spaemann’s judgment, finally went to the crux of the matter: do the unborn have a right to life? Rüpke argued against this on the basis of a “relational” theory of the person–an understanding of the person so dangerous for human rights that Spaemann felt compelled to respond.

Haben Ungeborene ein Recht auf Leben?” (1974) by Robert Spaemann. Collected in Grenzen: zur ethischen Dimension des Handelns. Stuttgart: Klett-Cotta, 2001.

I. Right to life as “protection”?

The debate about principles is obviously still not at an end. Giselher Rüpke has published an astute article that should not remain unanswered. In contrast to most proponents of a complete restriction of or public subscription to the approval of abortion, Rüpke goes to the heart of the problem—namely, to the question: Does an unborn child possess a right to life or not? His explanation for the denial of such a right to life would allow for terrible consequences.

Rüpke’s thesis is, in short, this: The right to life according to article 2, section 2 of the Basic Law does not refer to “human life in the scientific sense,” but rather to an ideal subject, who is first constituted by “societal relevance, expectations, and esteem.” Symbolically mediated interaction and communication are constitutive for human life as legally protected. And if some small children up to the first year of life may not be killed, though they do not yet participate in such interaction, then this is only on account of the “wealth of symbolic meaning, which the remaining members of the community of the child bring in the form of hopes, loving relationships, and personal, medical, and economic help. The baby is here a socio-psychologically and socio-economically very relevant member of the community.” Rüpke concludes that “without a socially relevant criterion for the admission into the community of rights, turning motherly engagement to the child should not be absolutely imposed.” This argumentation holds precisely true for the idealistic disconnection of consciousness and biological substrate, for “body” and “soul.” But the turning inside out of this idealism by a materialistic socialization theory makes the subject even worse and even more confused. The natureless “I” appears now as the result of a social-psychological process of identity formation, the soul as the creation of the community. Consequently it is also the property of the community, and personal rights become the property rights of the community in regard to the person. Rüpke speaks of a dialectic of individual and community. There is such a dialectic in the action—though still misunderstood—if a man, such as Rüpke, understands the individual solely as the product of the community. The rights of the individual become safety precautions for the “communal carriers of meaning,” analogous to the protection of landmarks, in that there is no such a thing as the “rights of monuments,” but rather the rights of those for whom monuments possess significance (“relevance”). Such a point of view in which there are no genuine rights of individuals is an indicator of so-called totalitarianism. And if Rüpke believes that the chain of associations: “Abortion – Euthanasia – National Socialism” is able to be rejected because the Nazis assessed abortion in a diametrically opposite way, he errs. If the Nazis truly preserved criminal punishment for abortion in the land, they did so solely on the basis of demographic policy. In occupied Poland abortion was entirely legal. They cared as little about the right to life of the unborn as they did about the right to life of the born. They only knew the criterion of societal relevance.

II. Opposition to the social-psychological evidence

However, the reductio ad Hitlerum cannot replace the reductio ad absurdum. We thus revert once more to Rüpke’s considerations. They are attractive at first glance in that they appear as a type of application of new scientific theories of socialization. It is undeniable that the human being is brought to be that which is meant by the word “human” by a process in which caring adults play a decisive role. There is no reason without speech, no speech without communication, and in regard to communication, the child depends on the initiative of an adult caregiver. What characterizes the human being as a person cannot be deduced from the borderline case of the as-yet-socially-unminted embryo, but rather from the adult human being.

Modern anthropology and comparative zoology have been able to show that the human being by his biological constitution depends en masse on societal imprinting in order to realize his species-specific nature. But insofar as it is a question of the human being, the “biological substrate” as the matter of natural science is not, as Rüpke believes, separated from the childish “personality” as the product of socio-psychological relationships. The biological facts allow themselves to be interpreted by the human being in light of social and personal “determination.”

Certainly, we first learn to say “I” from our parents. But then we say, for example: “I was at such and such a time born or conceived.” That is to say, we say “I” to refer to a person, who at the point of time in question was not yet able to say “I.” We do not divide our “I” as the product of socio-psychological influences from that autonomous organism, who was addressed as “you” and consequently learned to say “I.” By this achievement we can first learn to retrospectively interpret what we, potentially, always already were.

The crucial point about this is can be better clarified if we bring to our minds the nature of those “personality constituting” acts of caregivers that, according to Rüpke, first give rise to a right to life. No child would be able to grow up to be a healthy human being were his parents to encounter him with an attitude of wanting to “make something from him.” Rather, the mother approaches the child—in a spontaneous regression, as we know today—as a partner in communication. She speaks with him, she smiles upon him, and so on, and thus allows the partner to “emerge.” The care for the child has from the beginning the character of recognizing a “subject.” Only thus (and not as a “creature” of his parents) can he become “for himself” what he is “in himself”: a subject.

III. Right and “real life”

The view of Rüpke contradicts not only the social-psychological evidence, but also the intention of the constitutional lawmakers. Legal dictates of justice are “communal creations,” Rüpke writes. That is trivial, inasmuch as all laws are communal creations. It is important that the constitutional lawmakers laid down in the catalog of fundamental rights certain rights as “off-limits” (außerhalb seines Zugriffs). For the self-understanding of a free country, this is indispensible. As Adolf Arndt wrote, “The constitutional power of interpretation of general equality statements by the third section of Article 3 of the German constitution means that the state is deprived from any determination of who is a human being, since according to Article 3 each living being who is conceived and born of humans would be assigned equal dignity.”

The constitutional statements in which the rights of the human being are formulated are always established in this way, entirely analogous to the way in which the first turning of the human being to another human being has the character of recognition. Now, if Rüpke refers to this recognition of right as being based in a transitory communal reality, he misjudges that the right itself is a communal reality, which has various social-psychological consequences. He speaks about the community taking no notice of the unborn child, and thus the child would not be worthy of protection. But the entire debate about §218 (and this paragraph itself) indicates the exact opposite, namely that society as a whole up to now has been interested in the unborn child from the first moment of his existence, and indeed in the precise sense that they award him the rights of a subject.

The opponents of a legal protection <of the unborn> object that the legal normalization <of abortion> would be unrelated to that which they call “real life, ” which they obviously understand as spontaneous, unexpected primal relationships. But there is an elementary contradiction in this. Mere intuitive naturalness is said, on the one hand, to render the child as a mere “biological substrate” without communal relevance. But on the other hand the abstraction of a societal-wide entirely unexpected spontaneous relationship counts as the “reality” to which legal norms are solely to be oriented. With Rüpke the contradiction goes even further. He admits openly that the conflict between the desire to escape from an unwanted pregnancy and the duty to respect human life once it has been conceived is not simply a conflict between the mother and the lawyer, but rather a conflict in the consciousness of the woman herself. He speaks of an “ambivalence of valuation” caused by the “timidity” (Scheu) of women as a psychological barrier, which finds its expression in the legal sanctions <against abortion> and which is strengthened by them. Now, “timidity” has always been valid as the primary form of the appearance of the moral consciousness. Several proponents of abortion on demand emphasize that the removal of legal protections does not set the unborn free, but rather only gives them to the care of the conscience of the mother. In contrast, Rüpke clearly indicates that this “conscience” is a psychological barrier before abortion itself and thus he wants to eliminate the legal strengthening of it. In reality this is because conceding this would also, evidently, eliminate the child’s existing relevance in the consciousness of the mother by the legalization of abortion! Even Rüpke makes clear that in this case the elementary evaluation of the communal reality would not carry much weight; rather, it would be influenced and changed in a determined way.

IV. Emancipation from Nature

The school of thought of this change is called “emancipation of the human being from the constraints of nature.” This formula is suggestive. However, it does not give a clear and lucid goal for human behavior. It is not by chance that the formula arises frequently in tandem with the intention to kill. Full emancipation from the constraints of nature is in the act equivalent to death—more precisely, in suicide. Only then we deprive ourselves of all not set by we ourselves as the conditionality of our existence. The environmental debate of the last years has shown that the self-conscious emancipation from nature without any “timidity” rapidly leads toward the collective suicide of humanity. Wherever nature appears no longer as the condition of our being, reconciled by memory, but rather as a fetter from which we must divest ourselves, this dream has a deadly outcome.

Emancipation from nature, mastery of nature, is an ambivalent goal. It means an ever greater increase of the power of the community over the human being, since the human is the natural basis of the community.  Mastery of nature implies mastery of human beings over human beings, since the human being is himself a part of nature. To first acknowledge him as a subject in the state in which he is no longer natural is to completely invert things.  First of all, the human being is a transcendent being, a person, who freely acknowledges his way of being as his own right. Yet the emergence of the human being is not a deed of the human being. We can indeed prevent conception, but the link between sexual intercourse and conception is no human invention, but rather an “invention” of nature. Inasmuch as every human arrives by being born, not by being “co-opted” into the community, he himself seizes his rights—he does not “owe” them to other human beings. The very thing that Rüpke calls “Biologism” is in reality the condition of freedom.

But a powerful tendency of the modern society is directed against this condition: the tendency to totalitarianism. Every child, whether “wanted” or “unwanted,” brings an anarchic element into the established system. Every birth is a revolution, sand in the gearbox of societal reproduction and satisfaction of needs. Even the basic society of the family is inevitably revolutionized in its structure by the existence of a new member. No societal or political fundamental consensus is valid once and for all. The “new recruits” (neu Hinzutretenden) must first determine whether they will join in the consensus or not. The legalization of abortion is an attempt to guard against this. It makes the society into a “closed shop.” The establishment co-opts members or excludes them. Rüpke speaks of this, that “on the basis of the postulated fundamental consensus of the constitution . . . severe curtailment of the generalizability of personal convictions or organized group ideals” is to be undertaken. The very same thing is, in reality, the crucial argument against him and the supporters of abortion on demand. They are the ones who substitute the personal beliefs of their group for the constitution’s postulated fundamental consensus, by arbitrarily restricting, through a legal designation, the term “human” to the circle of young subjects of such a consensus. No legalization of abortion can thus be in compliance with the fundamental consensus of a free constitution.

Rüpke tries to invert the constitutional position and to depict “forced birth,” or more specifically, the “legally ordered personality change of the woman” as an unconstitutional limitation of personal rights. This opinion ignores that neither the state nor the society have invented the way the human being arises. They have to do only with already existing human beings. The legal protection of unborn children is entirely incomparable with the force of a marriage. If the child has settled in the woman, though perhaps without her having intended it, but with her involvement, Art. 2., §2 of the Basic Law necessarily comes into force. Now against this Rüpke alleges that personal rights have “as immediate emanations from human beings a consequently higher rank that the right to life of another.” The consequences of such a standpoint would be very far-reaching. Life may indeed be the first personal development and the condition of all the rest. The thesis of Rüpke thus means that those already further advanced in this development may, for the purpose of their further development, cut off others less advanced as far back as the first steps on this path. But why, then, limit this only to the first months of pregnancy? The protracted medical condition, the accident of a child or the spouse could have more radical personality-changing consequences for the mother than the birth of a healthy child. Would it enter someone’s mind here to speak of a “legally enacted personality change” in light of the prohibition on killing? That is already misguided, because the question of the direction in which the personality changes under the influence of external demands is quite open. But if Rüpke means that the state has to carry the responsibility for all changes of personality, which result from the confrontation with destiny, from the assumption of obligation, or from other circumstances in general, then this thesis will be completely absurd. We all constantly change our personality under external influences. The occurrence of a pregnancy as such is already an intrusion into the personality. And who is to say whether abortion leaves behind more negative or more positive traces in the woman than the bearing of a child? Is the destruction of moral “timidity” in the context of an abortion then not a change in personality? To charge the lawmakers, on behalf of the development of personality, with the all eventual consequences of the omission of a criminal behavior, evinces a hypertrophy of the concept of communal responsibility. While the state protects human beings from human beings, it is not God—that is, not the addressee of the complaints or of thanks for all that happens and for all which is, as it is.

But even if the lawmaker has to take responsibility for the changes of personality that result from compliance with the law, the alternative of “Human Dignity vs. Right to Life” remains a false construction. Those actions and omissions that are demanded from a human being because human beings are indispensable for the lives of one another and are replaceable by no equivalent cannot actually impair his dignity as a human. The opposite is the case. The ability to acknowledge expectations of this kind as duties is, in fact, what first gives the term “human dignity” a comprehensible meaning.

Translated by Alexander Schimpf

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