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Should infanticide be legal?

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Infanticide, the killing of newborns, was practiced in some cultures. Should it be legal?

Some legal regimes such as the one of the U.K. make infanticide lesser crime than murder. However, the motion under discussion is not "infanticide should be a lesser crime than murder" but rather "infanticide should be legal".

The main purpose of the question is to examine the argument space. By doing so, we can learn something about reasoning about morality and legality in general. By testing or examining arguments on a more extreme case, we can learn something about them that we would not learn on a practically useful one. It also helps better understand cultures which accept such practice.

Key predicates: human · human right · person · mother · child · awareness · self-awareness · first trimester · birth · bodily autonomy · fresh newborn · killing · murder · execution · killing in war · socially dangerous · property · project

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Pro

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  •   Pro Killing a newborn is not socially dangerous. In particular, the mother is not likely to follow up on killing the newborn with killing other people. A mother or father who kills a newborn is probably in a desperate psychological or economic situation; i.e. a person to be pitied, not to be criminalized. Indeed, it was their own child, and it was a difficult decision to make.
    •   Objection Something being not socially dangerous is a weak argument. It depends on what one means by socially dangerous. Stalin's atrocities were not socially dangerous in so far as they did not harm the growth and self-preservation of the aggregate biological and cultural entity that was the society of Soviet Union. That does not make these atrocities remotely acceptable.
      •   Objection Point with "socially dangerous" taken: it is ambiguous. Then to put it differently, a mother who killed her newborn is not a dangerous criminal with a risk of further harm to other people, unlike Stalin. Putting such a mother in prison does not protect other people from her; it serves as a deterrent at best.
        •   Objection Perhaps it is unwise to punish such mothers with prison, but that does not mean the act should be legal. Indeed, some jurisdictions distinguish infanticide from murder, both illegal.
  •   Pro Killing a newborn is likely to be based on an instinct created by Darwinian evolution by natural selection. From the point of view of the gene, the mother has to decide whether it is better to keep the baby or put it away. Thus, the mother does not act out of deliberate ill intent but rather instinctively.
    •   Objection That may be an argument for a reduced punishment but not for making a murder legal. However, even that is weak: there may be an instinct in men to wage wars over natural resources or access to women and there may be a good evolutionary explanation for that instinct, but that does not justify acting on that instinct in any way. In general, all human behavior has some causal explanation, but that explanation does not produce justification, or else all deeds would be justified.
  •   Pro Killing a newborn is not murder since a newborn is not aware of itself as a moral entity. Such awareness only develops later.
    •   Objection If we accept the argument, then a stranger should be able to kill the newborn as an entity that is not yet moral. That does not seem acceptable.
      •   Objection This is not accurate because a stranger killing your baby will be considered as destruction of someone else's property, which is illegal. Since the baby is not considered human in the sense of a moral entity, it should be considered as a human object, and not a human individual.
  •   Pro In a sense, the newborn is a property and project of the parents, and they should be able to end the project if they wish. No one should be forced to raise a child if they do not want to.
    •   Objection The newborn is the property of the society of moral agents. The agents say, the newborn is not yours, it is ours. We respect the newborn's autonomy and your right to raise the newborn, but it is under our protection.
      •   Objection That is a declaration of intent, not justification.
    •   Objection They do not need to raise the child if they put it for adoption.
    •   Objection If that is accepted, parents should be able to kill their children in any age in so far as they are their "property and project". That does not seem acceptable and is not being proposed in the discussed motion. The motion would then need to say, killing one's own child should be legal regardless of the child's age.
    •   Objection In our legislation, we recognize the concept of human rights. And one of the human rights is to be not murdered by another. A newborn is a human, not property or non-human animal, and is thus protected.
  •   Pro Whether killing a newborn is acceptable depends on the scoping of the notion of person, provided it is persons who are protected, not any and all humans. Some see the start of the person at about the end of the first trimester, others at some time after birth. The state should not adjudicate between these views, and instead should go for the more permissive construction, leaving the decision of how to scope personhood to the conscience of the mother. In any case, there is no reason to believe that personhood changes at the point of birth.
    •   Objection If the more permissive interpretation is unpalatable to the voters, who are the source of power in the state, it should be possible for them to go for the more strict construction.
      •   Objection That is an argument for following a democratic process, not for imposing one's culturally-dependent views on others via legislation.
        •   Objection Imposing culturally-dependent views is unavoidable, as e.g. when we guarantee the freedom of speech, which some cultures disapprove of.
    •   Objection The point in time in which a non-person changes to a person is necessarily to some extent arbitrary. It can then conventionally be chosen at the point of birth, which coincides with bodily autonomy of the newborn.
      •   Objection Its being arbitrary does not make birth the ideal cut-off point. Making the point later increases the mother's autonomy over keeping or not the child. Thus, if it is a person that is protected and not human, a child with severe birth defects that would only lead to a short miserable life can be spared the pain. Avoiding suffering of a child with little or no hope of improvement would in fact seem humane or kind.
        •   Objection Legalizing killing newborns would not only cover the cases of birth defects; it would cover perfectly healthy cases as well.
          •   Objection True, unless that difference would be added to the legislation. Nonetheless, the issue can be deregulated and the decisions delegated to mothers, supported by the notion that fresh newborns are not really persons in a deeper sense, and the fact that they are their parent's project, while not being sufficient of its own, contributes some force to the deliberation.
    •   Objection This assumes that we should define immoral killing in terms of person rather than human without explaining why. We speak of human rights, not of person rights.
      •   Objection It is because what makes humans more morally significant than animals is not their animal body (which shows homologies with bodies of other animals) but their personhood, which animals lack.
        •   Objection An alternative explanation is that the species of homo is the subject of protection, by its members.
          •   Objection That would mean that an intelligent species capable of moral reasoning would not be protected because it would not be human.
            •   Objection It would not: the unspoken more universal selection criterion is not of human but rather of rational species or moral species, species capable of reasoning and moral judgment as revealed via the medium of articulate speech. First, the adjectives rational and moral are used to select the species, and then, individuals of that species are protected. The notion of person is not introduced. Thus, embryos of such species are protected as well as individuals in coma. Since no such species is known other than humans, we usually simplify the argument by pointing out that the individual is human instead of saying that it is of a rational species.
              •   Objection We can see elements of likely reasoning and behaviors similar to morality, including self-sacrifice, in some higher animals, as reported e.g. by Darwin. It is not clear why the power of speech is important; we would not exclude mute people from protection.
                •   Objection The whole species is protected: an inarticulate member of an articulate species is protected, as long as innocent and in civilian context, whether awake, asleep, in coma, etc.
  •   Pro The notion that the protection should be driven by membership in a species is a case of speciesism and categorical or binary thinking. In binary thinking, each act is either moral, or immoral. Each individual either belongs to the species, or it does not. There is some attractiveness of this thinking and it makes for easier administration, but it does not seem ethically sound. The notion of morally wrong is not a binary notion: murdering 10 people is more morally wrong than murdering a single person. And species are not either protected or unprotected; rather, non-human animals are somewhat protected, e.g. from wanton torture. This leads us to the world of relational properties and fuzzy logic. Instead of the binary human vs. non-human, we switch to person and that is not binary. A newborn is more of a person than a 200-cell fetus, and a 3-year-old is more of a person than a newborn. Thus, personhood is a fuzzy predicate, one of degrees of membership. The problem is that things are either legal or illegal (binary), so to determine whether something should be legal, we need to apply some sort of threshold on relational and fuzzy predicates. It is attractive to consider birth to be a threshold point since it is something like a natural boundary, like river being a boundary of a country, rather than an artificial boundary, like a straight line being a boundary of a country. But a boundary being natural does not make it morally relevant, merely cognitively and administratively attractive. A more nuanced analysis says that the protection should not be based on species membership but rather on degree of personhood in a particular individual. Thus, a human with very badly damaged brain, perhaps part of the brain missing, shows lesser personhood than a healthy human. That is not to say that there is no moral concern with killing an individual with lesser personhood. But one should balance competing values. The general moral imperative is do no harm. That is not practicable, so it is modified and refined. By putting someone in prison, we do harm to them. We are allowed to do it in self-defense or to protect other values. By treating a hormonally impacted mother who killed her newborn as a criminal, we are all too likely to transgress boundaries of reasonable self-defense. We apply the natural boundary of birth not because it is most morally significant but because it is natural. This to some extent is a repetition of an argument already made, but with more nuance and sophistication, emphasizing categorical/binary vs. relational/fuzzy and natural vs. artificial vs. morally relevant boundaries. Some dislike things fuzzy, and that is understandable, but it is not morally and cognitively ideal. What is ideal is compassion, not only with the killed newborn but also with the hormonally impacted mother.
    •   Objection Interesting analysis. However, some parts seem inconclusive. First trimester could well be artificial boundary where the degree of personhood crosses the 0.5 threshold or some other relevant threshold, and the above does not say why not. Nonetheless, the emphasis on fuzziness and relational character of person and morally wrong seem to add value to the discussion.
    •   Objection Interesting. The plea for compassion is fine. However, as said in response to some of the above, we may make killing of a newborn illegal while at the same time treating the mother with compassion and perhaps not putting her in prison or use greatly reduced prison sentence. That is in line with the relational/fuzzy thinking.
      •   Objection We can, but those who defend the birth as the boundary need to explain why it is morally significant. They could say that it is a moment at which the newborn gains bodily autonomy. But that does not seem more relevant than personhood. A discussion of personhood seems more relevant and birth is an insignificant event in that determination: the degree of consciousness before birth and after birth is similar.
        •   Objection For any artificial boundary B, the degree of consciousness before B and after B is going to be similar. That is therefore not the problem.
          •   Objection Fair enough. Still, birth is not an obviously significant event in the moment of cognitive development. The end of first trimester has a better claim of being significant. It seems that if we reject infanticide, then we should at least also reject late-term abortion.
            •   Comment. Right. We should probably reject late-term abortion except for special cases together with most cases of infanticide, again perhaps except for special cases like de facto newborn euthanasia. Some will reject euthanasia (mercy killing) whether for newborns or old suffering people, but that is a separate concern.
  •   Pro The ultimate source of bad human behavior are, generally speaking, the genes. What is to be punished are not so much persons as their genes. And in the case of infanticide, the act is self-punishing (taking self to refer to the genes): the genes have been punished by reduced chance of replication.
    •   Objection It is proven that the presence of symbiotic genes (e.g. w:Human microbiome or w:pathogens) may be a source of bad human behavior. This knowledge makes infanticide irrational and unusual, and thus illegal.
    •   Objection This is not the case of self-punishing because a newborn bears genes of a father too, and other living relatives (grandparents) who may be interested in having the newborn alive.
      •   Objection Considering private interests of the relatives just conveys the legality from the criminal field to the civilian one. But the debate is not about that.
    •   Objection The theory of genetic determinism of human conduct (as contrasted e.g. to tabula rasa) espoused above is not universally accepted.
    •   Objection Expanding on the above, a (putative) decision to make infanticide legal is a causal factor into an individual mother's decision, which refutes the absolute genetic determinism. Even radical genetic determinism is forced to acknowledge that events and states of affairs observed and experienced by a person (such as the legality of something) affect that person's behavior.
    •   Objection "Self" does not refer to the genes; it refers to the person.
    •   Objection If the gene-coded neural and endocrine systems calculated that the infanticide is beneficial from the gene's replication perspective, it cannot at the same time be detrimental, and thus, one cannot really talk of punishment of the genes.
      •   Objection It is not so simple. Genes would have calculated properly in the primeval environment where they originated. In the modern environment, the decision to kill the newborn could easily be detrimental, especially if we reckon that the baby could be given to adoption. And adoption is arguably a near-perfect instrument from the gene's perspective: one gets the genes replicated without having to bear the economic burden for doing so.

Con

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  •   Con Killing a newborn is a murder and therefore should be illegal.
    •   Objection It is not so simple and it depends on scoping of the notion of murder. Our initial definition of murder may be as an intentional killing of a human, but then we realize it does not work and needs modification. We realize that an execution is not murder and killing an enemy combatant is not murder. Thus, we start with a simple definition, and follow it up with a process of exclusion and inclusion. It is therefore at least initially plausible to consider excluding killing of a newborn from murder, and saying "it is a murder" alone does not help us further.
      •   Objection Fair enough. A newborn is innocent; a person executed not so, and an enemy combatant cannot be under protection from killing or else we would be unable to defend our nation or tribe.
        •   Objection True. However, collateral damage in war, a civilian, is also innocent. Thus, being innocent alone does not warrant protection.
          •   Objection A person killed as collateral damage was not intentionally killed; such death is merely accepted as an unavoidable bad thing, not as a good. By contrast, the objective of killing a newborn is the death specifically of that newborn.
          •   Objection The war context affords other deliberations than civilian context.
            •   Objection Why would that be? If killing a human is bad, it is bad.
              •   Objection Because we need to engage in war for self-defense. And once we do, it is hard to avoid collateral damage entirely. We do not need to allow killing of newborns: they can be adopted by surrogate parents or they can be raised in a dedicated institution.
                •   Objection But that makes it society-dependent. In a society where adoption or institutional case are not practical, killing a newborn would need a different deliberation.
                  •   Objection A certain kind of society was indeed an unspoken assumption.
    •   Objection Legally speaking, infanticide is illegal yet not murder in some jurisdictions.
      •   Objection Fair point; I used the term "murder" in a vaguer, non-legal sense.
  •   Con Intentional killing of a newborn by its mother is an intentional killing of an innocent human in a civilian context. Thus, it should be illegal. This addresses the issues raised against the less refined argument above.
    •   Objection If we accept euthanasia, a merciful killing of someone with suffering, the criteria are still incomplete: a person asking for euthanasia is an innocent human in a civilian context.
      •   Objection Fair enough; we can add more exceptions or differentiation. (We become more like a complex organism than a simple organism with only one type of cells and low differentiation of cell types.)
    •   Objection This does not address the human vs. person objection.
  •   Con Mothers in developed countries who find themselves unable to take care of a newborn have readily available options other than infanticide, such as putting up the infant for adoption. Additionally, the life of a healthy newborn is highly valuable. Setting aside the argument that human life has value, a newborn takes considerable time, effort and resources to create and can be expected to contribute greatly to society on average. Because infanticide therefore has no serious justification and does society harm by depriving it of a valuable resource (1 living newborn), it should be penalized to discourage the practice.
    •   Objection The question is not whether infanticide should be legal in the modern world but rather whether it should be legal, where the society and technological level is left unspecified.

See also

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