Bodily Rights and a Better Idea

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A positive review of the original version of “Bodily Rights and a Better Idea”, written by LMJ Deputy Editor C.J. Williams, appeared in Life Matters Journal Volume 5 Issue 1 — April 2016

I hope that this essay has only become clearer since 2016. It was last updated 30 December 2023.



You might first want to read “Bodily Rights and a Better Idea: the Short and Easy Version.”

See also the Ownership of the Body section of “The Body, the Uterus, and the Question of Ownership”



Robert McFall clearly needed some of David Shimp’s bone marrow more than Shimp needed it. When Shimp – McFall’s first cousin – refused to give it, McFall took him to court.

The judge’s gavel came down. He wasn’t enthralled with Shimp as a person, but every speck of the bone marrow in Shimp’s body was, in the eyes of society, private property – Shimp’s private property. McFall’s eyes closed on the world, for the last time, before his 40th birthday.

A caring society views both such persons as equally valuable. Such a society has an interest in seeing both thrive and not come to harm. It would seem completely logical for society to have instructed Shimp to hand over some bone marrow, and if he did not do so peacefully, to have taken it forcibly. Why doesn’t society do that? Is society wrong not to do that?

Society sometimes grants to its citizens surprisingly strong body-related rights – body-related rights that are out of proportion to what a rational fairness would seem to demand. In a moral framework, our bodies have a certain mystique. I don’t think that that is necessarily wrong. People are psychologically constructed with a strong sense of ownership of their bodies. Ownership of any kind has no foundation in science, and a strong principle of individual body ownership would be very debatable philosophically, but the psychological sense is a reality. And due to sharing that sense, which is to say, due to belief in the validity of that sense – or due at least to a pragmatic recognition of the strength of that sense – society sometimes grants to its citizens surprising rights such as those of Shimp that we have just seen. A belief in the validity of that sense could also be termed a moral intuition (whether or not it is a correct moral intuition) that near-inviolable body ownership ought to be respected.

I cannot think of a more likely explanation than this for the origin of that particular moral intuition. And I basically support such rights, at least in this part of this century. Perhaps Shimp should have been sentenced to a lot of community service for refusing to help McFall. But I say that I basically support such rights because I do not think he should have been tied down and his bone marrow removed forcibly.

It is important that the laws and conventions of society should give that psychological sense of ownership, and the actual ownership that society tends to think underlies it, its due. But is the current concept of bodily rights the most logical and coherent way to accomplish that? The value of the current concept of bodily rights is one of the first things we will examine.

The bodily-rights argument for legal abortion is usually advanced through thought experiments that create analogies with pregnancy – analogies in which our sympathies will be on the side of a right to refuse to let one’s body be used. And those arguments are usually contested by showing the disanalogies between the situations of the thought experiments, and the situation of actual pregnancy. This essay hopes to reveal that one’s bodily rights may not be as strong in the first place when abortion is being prevented as they are when organ donation is being compelled (which is in itself a disanalogy), but the main effort here will be to analyze the concept of bodily rights. I think that the resultant demystification of bodily rights will cause “bodily rights” to lose its power as a mantra and retain only a more rational kind of power – power in situations where that power serves justice, but not in situations where it doesn’t – and that that in itself will weaken bodily-rights arguments for abortion rights.

SYNOPSIS

Negative and even positive rights of different kinds can all be conceptualized in this way: they are rights not to be caused harm of different kinds. So what kind of harm can bodily rights, usefully conceived, protect us against? In order for the term “bodily rights” to be useful, such rights should not redundantly protect us in ways already covered by older and more obvious ethical notions (such as the right not to be punched in the face).

I find in this essay that the term “bodily rights” is useful only if it is confined to rights that aim to protect us against a certain kind of mental harm – offense to our psychological sense of body ownership. That form of mental harm is a real harm (a real mental harm), and it is caused by the trespass per se.

(Rather than a “sense of body ownership”, the sense may often be a sense more of identification with the body, and we also have a sense of dignity or indignity associated with the treatment of our body by others. For convenience, I will use “psychological sense of body ownership” to mean any balance among these different senses that an individual may have at any moment. In any case, they are all psychological senses that are susceptible to being offended.)

Current concepts of bodily rights do reflect some awareness of the sense of body ownership and of offenses to that sense, and they do aim to protect us against the harm of those offenses, but they also aim, redundantly, to protect us in other ways. Moreover, logically the strength of the right that protects us from that mental harm should vary in proportion to the degree of that mental harm. People advocating on the basis of the current concept of bodily rights may not (though they sometimes do) claim that bodily rights are absolute, but they do claim, at least implicitly, that the right is less than absolute only in that the strength of the right varies with the degree of trespass on the body, that is, on how deep in the body the proposed use of the body is to be. (They suggest that society may possibly require a person to use their arms and legs in some way, but it may not require them to surrender bone marrow, or to lend their uterus.) However, we find that in reality, the degree of that mental harm (consisting of offense to one’s psychological sense of body ownership) varies only partially and unpredictably in relation to the degree of trespass, so that really the degree of the harm can be ascertained only situation by situation.

This raises the possibility that a proposed use of the body, even if deep within the body, may not involve a high degree of the mental harm, and therefore may not justify a strong right to protect against it.

In relation to the abortion debate, it raises the possibility that a proposed use of the uterus may not involve an extremely high degree of the mental harm, and therefore may not justify a strong right to protect against that use. In the essay I discuss that possibility at some length. Bodily-rights arguments against abortion restrictions show us that denial of abortion is a degree of trespass on one’s bodily boundaries similar to the degree of trespass involved in other situations (such as the forcible appropriation of a body part) which nearly everyone’s moral intuitions agree are wrong. Bone marrow or a kidney is located deep within the body, and the uterus is located deep within the body. The arguments thus try to persuade us that denial of abortion is also wrong. However, they overlook the unpredictability of the mental harm, mentioned above.

I do not think that establishing the correctness of the pro-life position depends entirely on the possibility I mentioned about the degree of mental harm involved in a proposed use of the uterus. That possibility is the possibility of a big disanalogy between use of bone marrow or a kidney, on the one hand, and use of a uterus for gestation, on the other hand, but even without that disanalogy, I think that a “cocktail” of other, often better-known, disanalogies defeats bodily-rights arguments.

The moral intuition that body ownership ought to be respected seems to stem, as mentioned earlier, from the wish to spare our fellow human beings the mental harm of offense to their strong psychological sense of body ownership (which sense is an undeniable reality). So to answer the question whether there should be a right to refuse the use of one’s uterus – a right comparable in strength to the right to refuse to donate one’s bone marrow – one question that we in society have to answer is whether the mental harm to a woman when abortion is denied is really comparable to the mental harm that would occur if one’s bone marrow or kidney were taken forcibly. Since I think I will show that real mental harm is somewhat independent of the degree of trespass of one’s bodily boundaries, it is not enough, as mentioned, to show that the uterus is deep within one’s body. Rather, the degree of real mental harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific class of situation, not by possible biological similarities with other classes of situation (normally I will just say “situations” rather than “classes of situation”). In the present undeveloped state of psychology and neuroscience, we in society will have to rely a lot on our intuitions, which will be discussed. To understand it in this way is to liberate our minds by demystifying bodily rights, as we seek our most correct moral intuitions about abortion.

I hope that producing a better understanding of what bodily rights really consist of and don’t consist of  will in itself help in a general way to convince readers that in invoking bodily rights we have to approach different social situations in different ways. But beyond that, I hope to show that in the specific situation of a typical proposed abortion, the possibility I mentioned, that the harm caused by offending the pregnant woman’s sense of body ownership may be less than the harm caused by offending the pregnant woman’s sense of body ownership in some other situations, is likely a reality. In this essay alone I will not prove that abortion should be illegal, but I think that I can at least help show that there is no strong bodily-rights argument against making many abortions illegal.

(The entire argument of my essay can be outlined in ten  points – see below. The foregoing nine paragraphs can be broken down into points 1-8 of the outline.)

Moreover, if society holds and sustains a “right not to be unjustly harmed physically or mentally,” and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes, and society can dispense with the off-target and therefore sometimes misleading idea of bodily rights. (This sentence can be broken down into points 9 and 10, i.e., the last points, of my outline.)

I would like to proceed now according to the following outline:

1. Rights are only meaningful and useful in terms of protection against wrongs, that is, against unjust harm, so the concept of bodily rights – “bodily” and “rights” – can be meaningful and useful only in situations where there is a potential for unjust harm to be done that is defined solely by trespass of one’s bodily boundaries; and only if protection by more obvious ethical notions is lacking.

2. Harm can be only harm to the body or harm to the mind, or both.

3. In terms of a right to freedom from harm to the body, the concept of bodily rights doesn’t realistically add anything to older and more obvious ethical notions. So though the current concept of bodily rights aims to protect against both physical and mental harm caused by trespass of bodily boundaries, in relation to bodily harm, the concept is superfluous and therefore not particularly useful.

4. In terms of a right to freedom from mental harm, the concept of bodily rights could be meaningful as one possible way of framing that right. (Even if it is not the best way – see 10.) People have a sense of ownership of their bodies, such that trespass on their bodily boundaries can be a source of mental harm, and “bodily rights” would be one way to protect from that mental harm.

5. Because of the sense of body ownership (and the assumption that actual ownership underlies it), in a situation of opposing interests between two innocent people that involves one person needing to use the body of the other, society does not make a simple decision in favor of the person who is likely to suffer the greater total harm of obvious kinds – that is, of kinds other than offense to the sense of ownership. It counts that kind of mental harm as harm, which weights its decision in the direction of the person whose body stands to be used by the other. (The total harm that can possibly be caused to any person by any action consists of the physical harm, the tangible mental harm, and that or some other intangible mental harm.)

6. Society weights its decision in this way so strongly, that in many cases it decrees that a particular offense against one person’s sense of body ownership is not justified even if the other person will die.

7. Although the concept of bodily rights is often expressed as a very simple principle, and sometimes as an absolute principle, when people actually apply it to different real-life situations, we see a patchwork of different attitudes, each depending on the situation. This renders the concept vague and confusing as a yardstick in any situation that has not yet been resolved, such as a proposal to abort. It turns out that the degree of mental harm caused by offense to one’s sense of ownership, which society believes to be morally relevant, is inconsistently related to the degree of trespass on the body – the degree of trespass being morally irrelevant apart from harm. Since it is inconsistently related to the degree of trespass, the degree of the mental harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific situation – not simply by knowing the degree of trespass.We could speak of the situational nature of the strength of bodily rights.

8. Some actions that trespass a person’s bodily boundaries without the person’s consent are countenanced or supported by society in general (meaning that society in general does not take very seriously any offense to the sense of ownership in such cases). In my personal view, still more such actions should be countenanced or supported.

9. What matters, in terms of the rights that society should choose to sustain in this area of law and ethics, is that those rights should reflect a recognition of the sense of body ownership and its nuances – and of the possibilities of mental harm based on that sense of ownership and its nuances.

10. If society holds and sustains a “right not to be unjustly harmed physically or mentally,” and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes in this area of law and ethics, and society can dispense with the idea of bodily rights.

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