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 40^th 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.

And now the full argument:

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.

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. It might at first appear that only negative rights should be seen in that way; an example of a negative right is a right to freedom from cruel or unusual punishment, whereas the right to drive is considered a positive right and is a privilege that society grants to the deserving to perform a certain action. But freedom to drive is the default (anyone could drive if there were no restrictions), so denial of that right would detract from our freedom of expression, certainly a kind of harm. The right to drive, when granted, protects you against restrictions by the government.

A negative right protects you from harmful actions by individuals or by the government. A positive right protects you from restrictions, which are also harmful, by the government.

Bodily integrity, or bodily rights, according to one definition, “emphasizes the importance of personal autonomy and the self-determination of human beings over their own bodies.” I think having self-determination over one’s body would appeal to everyone. But its obvious appeal does not automatically make it a right. To see whether it should be a right, let’s first ask, what would a person lose if they did not have such a right?

In any society, I think that the development of concepts of rights must start with a sense of wrong being done to someone, or of a threat of wrong being done to someone. We interpret such a wrong or threat in terms of that someone having a certain right, and the wrong being a violation of that right. Thus it should be possible to gauge the meaningfulness of any right by gauging the meaningfulness of a violation of the right. We notice in the discourse around us that “bodily rights” usually comes up in the context of violations thereof. The concept of bodily rights can be meaningful only if and as there is a potential for harm to be done that is defined solely by trespass of one’s bodily boundaries. (A question which we will discuss under 3 and 4 below.)

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

“Violation” implies harm. All that humans are or have that can be harmed is their bodies and minds. (If there is a soul, and the soul can be harmed, let’s leave that out of the discussion.) Most kinds of harm involve harm to one’s body which is consequently harm to one’s mind also.

However, there are kinds of harm that relate to the mind only. A Shakespeare character said:

Who steals my purse steals trash. ’Tis something, nothing:
’Twas mine, ’tis his, and has been slave to thousands.
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

This character’s concern is about reputation (“good name”). The loss of reputation is an example of harm to the mind only. Another example of harm to the mind only would be the theft of objects not needed for one’s bodily comfort.

“All that humans are or have that can be harmed is their bodies and minds.” A violation cannot be harmless, so a violation of bodily rights must constitute either:

a. a violation of bodily rights that harms the body

b. a violation of bodily rights that harms the mind

or

c. a violation that harms 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.

Regarding a above: Long before we in the human community started talking about bodily rights, it was sensed that any kind of harm to a person’s body would be disagreeable to that person, and therefore that to inflict such harm without justification would be wrong. To put it conversely, we had a right to freedom from bodily harm. Now, the current concept of bodily rights has been said to “emphasize . . . the self-determination of human beings over their own bodies;” and as we have seen, that emphasis must be in relation to some possible wrong, some possible harm, which can only be to the body or the mind or both. As regards harm to the body, if the concept of bodily rights is to add anything new to the understanding “to inflict bodily harm without justification would be wrong” or “we have a right to freedom from bodily harm,” it would have to demonstrate a dichotomy between unjustified forms of bodily harm inflicted via trespass on someone’s physical boundaries, and unjustified forms of bodily harm inflicted without trespass on someone’s physical boundaries. Can it demonstrate that dichotomy in a meaningful way?

I have heard the following actions, most if not all of which involve bodily harm, all named as violations of bodily rights: assault, kidnapping, enslavement, torture, and medical experimentation without informed consent; as well as the forcible use of one’s body parts and being forced to carry a child that one has conceived (assuming that that causes at least a little bodily harm). But then what is left? What form of bodily harm does not involve a violation of bodily rights according to this thinking? If there are such forms, that would explain why “bodily rights” adds something when we object to bodily harm, but if there are not, then “bodily rights” doesn’t add anything.

An unborn child is inside the mother, and consumes some of the nutrients in its mother’s body. If the child is unwanted, this is a clear violation of bodily rights, we might say. Whereas when an enemy army surrounds a city and cuts off its food supply, it deprives the inhabitants of nutrients without touching their bodies. So we might say that here we have discovered at least one “form of bodily harm that is not a violation of bodily rights.” But how useful is this distinction? It’s not. So if we are not to split hairs, every instance of bodily harm will automatically involve a violation of bodily rights, according to this thinking. But it seems to me that a useful concept of bodily rights wouldn’t try to add anything to more obvious ethical notions in terms of a right to freedom from bodily harm, and that insofar as a concept does try, it is not useful.

Another way to put it: In terms of harm to the body, a violation of bodily rights would be a trespass on one’s physical boundaries that results in bodily (as opposed to mental) harm. But if there are no forms of bodily harm that are not, meaningfully understood, trespasses on one’s physical boundaries that result in bodily harm, then there is no justification, in terms of bodily harm, for considering bodily rights as a right distinguishable from a right to freedom from bodily harm.

Instead of saying “You should not violate my bodily rights in a way that physically harms me,” why not just say “You should not physically harm me” – ? Instead of “You committed a nose-breaking violation of my bodily rights!,” why not simply “You broke my nose!” – ? We clearly have a right not to be harmed without sufficient cause, and assault, for instance, is clearly harm, without talking about bodily rights.

The current concept of bodily rights aims to protect against both bodily and mental harm caused by trespass of bodily boundaries. The urge to protect against those harms is well and good, but in relation to bodily harm, a concept of bodily rights is redundant. Even before the relatively new idea of bodily rights was defined, it was recognized that we had a right not to be harmed in terms of all the forms of bodily harm that eventually came to be included by some as violations of bodily rights.

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.) 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.

Regarding b above: Now let’s look at harm to the mind. It seems to me that there are two possible kinds of harm to the mind resulting from trespasses on bodily boundaries, one more tangible and one less tangible. 

i. Enslavement is one kind of trespass on bodily boundaries, and clearly enslavement is likely to result in mental harm, if only in that a slave will be deprived of a free choice of entertainments and likely of opportunities for learning. These tangible deprivations, these harms, occur because the slave’s body is restrained. And yet the same harms could be effected without restraining anyone’s body, for instance by closing the doors of places of entertainment and education to girls, such as occurs in some cultures. So just as the concept of bodily rights fails to demonstrate a dichotomy between unjustified forms of bodily harm inflicted via trespass on someone’s physical boundaries, and unjustified forms of bodily harm inflicted without trespass on someone’s physical boundaries, so, I think, it fails to demonstrate a dichotomy between unjustified forms of tangible mental harm inflicted via trespass on someone’s physical boundaries, and unjustified forms of tangible mental harm inflicted without trespass on someone’s physical boundaries.

ii. But now let’s look at less tangible forms of mental harm. Suppose you are in a foreign country and someone you have just met reaches out with a thumb and forefinger and feels a few strands of your hair, because he has never seen hair like yours before. Though to you he is violating the “self-determination of human beings over their own bodies” (in fact, by the way, we find that where the relevant boundary lines are drawn varies significantly from one part of the world to another), you are not harmed at all physically, nor harmed mentally tangibly – i.e., not harmed mentally apart from the bodily trespass – but you are harmed a little mentally by the mere sense of trespass. You are harmed because you have a sense of ownership, a sense that your hair is “all yours” (even if you had planned to cut off that part of your hair later that day). And society believes in that ownership, or at least pragmatically recognizes the strength of that sense of ownership, and that sense is being offended.

So now we are finally talking about real harm caused by a violation of bodily rights as presently conceived, without having to bring in forms of physical or mental suffering that may be related to, but can easily be understood without conceptualizing, trespasses on bodily boundaries. The only right that the current concept of bodily rights meaningfully provides would best be termed a “right to freedom from the mental harm caused by offense to our mental sense of body ownership.” Such a violation of “bodily rights” genuinely is mental harm. But how much suffering is involved? In the above hair example, not much – the nature of the offense is a violation of “bodily rights,” but the suffering is of low degree. That violation, lasting a few seconds, would hardly justify killing. Or suppose a stranger grabs your hand and shakes it, though he looks a bit unkempt, or gives you a quick hug, an unwanted hug, saying, “Welcome to Krakozia (or wherever).”

5. Because of the sense of body ownership (and the actual ownership assumed to underlie 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.)

And this, I think, is what justifies the existence of bodily rights as a meaningful concept in human society, to the extent that I think it is justified. If there are two possible courses of action, and neither course will do much positive good, but rather each will harm one of two persons, then surely we in society ought to select the course that will do less harm to one person than the other course would do to the other person (select the lesser of the two evils). The harm of offense to one’s sense of body ownership may not be obvious as a harm. But people do have a sense of ownership of their bodies, or rather feel possessive about their bodies (this is hardly breaking news, but it needs to be spelled out in this essay). 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 body-related rights that are out of proportion to what the lesser of the two evils would seem at first sight to demand – even allowing people to refuse to let their body parts be used by their living fellows after the people are dead.

Of course the strength of that sense must vary from person to person. Therefore society’s laws and customs must reflect its perception of a kind of average strength.

Our sense of others’ bodily ownership rights often tips what should perhaps logically be a simple balancing of obvious competing needs – seeing who is likely to suffer greater total physical and mental harm of obvious kinds – in favor of the owner of the body whose use is being demanded (e.g., David Shimp). That intuitive sense that we have of people’s bodily ownership rights is the whole basis of any meaningful concept of bodily rights and thus of the bodily-rights argument. We in society seem to sense that particular kinds of trespass on someone’s bodily boundaries may cause mental harm to that person not only in addition to, but sometimes disproportionate to, any bodily harm or tangible mental harm – because of that person’s sense of ownership.

Regarding 2 c above: I had said, “. . . so a violation of bodily rights must constitute either a) a violation of bodily rights that harms the body or b) a violation of bodily rights that harms the mind or c) a violation that harms both.” Now I’ve discussed the meaningfulness, such as it is, of a and b, and perhaps c will be clear enough without discussion.

Before closing here we should mention that mental suffering of high degree can also result in physical (psychosomatic) suffering, and that if that mental suffering results from offense to the sense of body ownership, then that psychosomatic suffering would be the result of a violation of bodily rights in the meaningful sense, which bodily suffering caused otherwise would not be.

As a conclusion to my discussion in 3 above about bodily rights in relation to harm to the body (a), I said, “. . . unwanted pregnancy should not be framed as the bodily rights of one person versus the right to life of the other, but as the right to freedom from bodily harm of each – so that if an abortion is proposed, the first thing, at least, that we in society have to ask is simply who is likely to suffer the greater bodily harm.”

Obviously the unborn is likely to suffer greater bodily harm than its mother, and obviously I meant to suggest that therefore abortion should normally not be permitted, but . . .

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.

Having now covered the topic of the mental harm as well as the bodily harm involved in violations of bodily rights, and having seen that the mental harm can sometimes be disproportionately great due to the sense of ownership of one’s body, while I would still say that the first thing that we have to ask is simply who is likely to suffer the greater bodily harm, it is clear that that is not the only thing that we have to ask. Those who use the bodily-rights argument, and their logic and their thought experiments, keep reminding us of that.

Here is a thought experiment that appeared in a (negative) comment under Kristine Kruszelnicki’s March 11, 2014 guest post on the Friendly Atheist blog:

They [both mother and unborn child] are entitled to their own bodily rights. So exactly how does a fetus have the right to co-opt another person’s body without consent?

Let’s say for example medical science has progressed to the point of being able to transplant a fetus into another human being. In an accident a pregnant woman is injured to the point of immanent [sic] death, does that fetus have the *right* to be implanted into the next viable candidate without consent?

The commenter was arguing, in other words, “A woman who is a candidate to be made pregnant in that futuristic way would have a right to refuse to let her body be so used – everyone would agree. Therefore, why should a woman who has become pregnant in a more usual way not also have a right to refuse to continue the pregnancy?”

Although a patient such as Robert McFall is likely to suffer greater bodily harm, if he does not receive a bone-marrow donation, than a potential donor is likely to suffer from donating the bone marrow, our moral intuitions do not presently support forcible bone-marrow transplants (or kidney transplants, etc.). And although an unborn whose mother has just died in an accident is likely to suffer greater bodily harm, if not implanted into some unrelated woman (in a future where that might be possible), than the unrelated woman is likely to suffer from having to carry the pregnancy, our moral intuitions do not presently support forcible implantation.

The pro-life rejoinder “But the right to life outweighs bodily rights” may be okay if “right to life” means “right not to killed”, including in an abortion; in 7 below we’ll home in on that question. But it would not be correct if it meant “right to be helped to survive”.

(And by the way, let’s stop using the rejoinder “But the unborn also has its bodily rights.” No, bodily rights, usefully understood, are rights to refuse a proposed use of one’s body. The unborn does have bodily rights, and they apply if someone aims to harvest its organs. But in a proposed abortion aiming only to kill it, no one is aiming to use it.)

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 that 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.

First let’s make it clear that we can’t seriously call bodily rights an absolute principle. In 4 above I gave the example of someone touching your hair or giving you an unwanted hug. The point is that merely because the nature of the offense is offense to the sense of body ownership, the impact of the offense wouldn’t have to be big. So it would not always be wrong to commit such an offense if it had to be weighed against other offenses. It would not mean that such an offense need be given more moral weight than other offenses, particularly the taking of a life. Society should expect anyone to tolerate an offense whose nature is a violation of “bodily rights,” if the offense is low in degree, before taking innocent life.

A recent internet comment said, “‘I do not want to be pregnant’ is sufficient reason to abort.” Such expressions are common from pro-choicers who use the bodily-rights argument. But does such an assertion express accurately the importance that need be accorded to the sense of body ownership? Suppose the reproductive function of the human race evolves. The uterus as we know it has become extinct. A sperm introduced into a woman’s body meets an egg somewhere, and the resultant organism travels and implants among the skin cells behind the woman’s shoulderblade. After ten days, the skin loosens and the embryo falls out. Placed in a bucket of milk, it will grow till it is fully viable, and then it can be removed from the milk and its breathing started. This is the process by which we all got here. No woman has ever been known to suffer any physical harm or discomfort from the ten-day gestation process, but removing the growing organism during that period would involve killing it.

Among pro-choicers who concede the personhood of the unborn (at least for the sake of argument), I have not yet known anyone to say clearly, “The woman cannot be legally prevented from killing that unborn child lodged harmlessly for a brief time behind her shoulderblade.” This shows that there is no absolute bodily boundary-defined right to refuse the uninvited use of one’s body. To everyone’s genuine intuitions, the degree of harm, and ultimately the cumulative degree of harm – the physical harm of pregnancy and delivery, tangible mental harm if any, and mental harm in the form of offense to one’s sense of ownership – is the real issue. It is the real yardstick of the justifiability or unjustifiability of refusing to let one’s body be used by someone who needs it – not boundary-defined “bodily rights.”

As regards the harm in the form of psychological offense, we will see in this section 7 that each specific kind of trespass of bodily boundaries is likely to carry a sense of offense of a unique degree, that cannot always be predicted by comparing with the offense felt in the cases of other trespasses. And of course, as mentioned under 5 above, the strength of the sense of body ownership itself must vary from person to person and from culture to culture, and therefore society’s laws and customs must reflect its perception of a kind of average strength for that society.

I have by now given some examples in which the offense to the sense of body ownership is low in degree. But there are certainly examples of violations of bodily rights that, even without causing significant physical suffering, cause mental suffering, in the form of that offense, of high degree. Think of the Abu Ghraib image of the naked prisoners in a pyramid. No one may be touching the topmost prisoner, and none of them may have been injured at all, and the trespass of their bodies was not deeply internal, but the offense to the sense of body ownership was reportedly, as you might expect, very high. Rape may sometimes be painless and physically non-injurious, and yet it is considered worse than any painful slap, because of that sense of ownership. A forced donation of bone marrow could cause mental suffering of high degree. An important question for this essay is whether the prevention of abortion would necessarily cause mental suffering of similar degree.

Pro-choicers will normally agree that society should sometimes require people to use their arms and legs. Parents should be required to use their arms and legs to take care of their children. But when pressed about that lack of absolutism about bodily rights, they usually say that no one should ever be compelled to use their internal organs, or allow use of their internal organs.

In our sense of ownership of our bodies, discussed in 4 above, we finally found some meaning and usefulness in the concept of bodily rights, that is, we found “potential for harm to be done that is defined solely by trespass of one’s bodily boundaries.” But as mentioned earlier, “the current concept of bodily rights. . . . misleadingly suggests that some defined degree of trespass of bodily boundaries will always do a defined degree of psychological harm; that is, that any trespass of bodily boundaries will harm and that deeper trespass will harm more” – harm in terms of offense to one’s sense of body ownership. The deeper in the body that the trespass goes, or the more vital the organ that is affected, the greater that harm should be, it is said.

Pro-choicers who use the bodily-rights argument point out regularly that while parents may legally be required to make strenuous efforts with their extremities (their arms and legs) for their born children, they are never required to give blood, even a teaspoonful, to their born children. According to that current concept of bodily rights, obliging someone to use their body themselves may be much less a trespass of bodily boundaries than directly exploiting the material of the body in some way, and yet the latter may not demand significant time or energy of them.

This “rule” is particularly misleading – and thus the current concept of bodily rights is vague and confusing – first because depth of trespass is hard to define, but more so because even insofar as we may feel confident in defining it, the degree of psychological harm that people seem actually to experience seems inconsistently related to the depth of trespass. (We will soon give some examples.) Given how difficult it is to predict the degree of mental distress resulting from one kind of trespass of one’s bodily boundaries, by looking at the degree of such distress resulting from another kind of trespass or from a particular depth of trespass, we can see, pregnancy being such a unique situation, how trying to calculate the distress caused by unwanted pregnancy, by looking at other situations, would fail.

Now let’s see some of the examples of the inconsistency between degree of trespass into the body (depth of trespass) and degree of offense to one’s psychological sense of body ownership.

a. The same president who said “a woman’s right to choose is fundamental” had five months earlier “beg[u]n rolling out vaccination requirements for federal employees and contractors and calling on employers to do the same.” Was his zeal for abortion rights based in part on bodily rights? Even if not, just three days ago as of this writing, his vice-president said, “every woman should have the right to make decisions about her own body – not the government.” And I’m sure many politicians and other people who champion bodily rights in relation to abortion, did also support those vaccine mandates. Yet vaccines work deep within the body. And even for people who oppose vaccine mandates, I think that a significant offense to an adult or a child’s sense of body ownership is rarely the reason they oppose it. So trespassing deep within the body is not always seen as a big deal.

b. We sometimes hear that a woman has been drugged – or plied, unknown to her, with an extra-strong drink – and then sexually assaulted. Society seems to react with more shock about the sexual assault, even if it is something less than rape, than about the drugging. Yet the drugging was an unlicensed use of the woman’s brain, which would seem logically to be the true sanctum sanctorum of the body. Sexual molestation (which as usually defined is less than rape) takes place only on the surface of the body, yet deeply offends the victim’s sense of body ownership.

There may be some parts of the body for which we have more sense of ownership than others, for which we have an intense sense of private property – “our privates”. “Anglo-American law has consistently recognized the right of a woman to defend herself against rape, even by killing her assailant.” There may be no clear logic in these matters. A victim of male homosexual rape, or even of some lesser homosexual assault, may often be less forgiving of his assailant than if the man had punched him in the jaw causing a concussion to his brain. The offense to his sense of body ownership is greater (independently, I would think, of any culturally-originating shame involved) in the former case.

c. We often find it amusing when one person scares another. Parents sometimes deliberately scare their children, or take them to scary movies. Perhaps this is even growthful. Yet the fight-or-flight response affects the heart, adrenal glands and other things while playing with various hormonal levels. If pro-lifers are forced-birthers, then such parents are forced-heart-palpitators. The heart is a deeply-located and vital organ of the body, yet society deems that little if any offense has been committed to the child’s sense of body ownership. Whereas if the school bully lands a punch on their child’s exterior, which may not particularly have scared him, parents who think in terms of bodily rights would call that a violation of those rights, an offense to the child’s sense of body ownership (quite apart from the possibility of  its being a source of mental injury of other kinds, and physical injury).

d. In some countries military service is compulsory, and in a peaceful country beset by aggressors, I would be supportive of such compulsory service. Think what the soldiers may have to give of their body organs. When a person is conscripted into an army, he or she risks all his body organs being blown to bits. (Different cultures vary greatly in their acceptance of military conscription, by the way.)

So each kind of trespass of bodily boundaries is likely to carry a sense of offense of a unique degree, that cannot always be predicted by comparing with the offense felt in the cases of other trespasses. Neither can it be predicted by trying to equate the degree of that mental harm with some measure of how greatly it has trespassed bodily boundaries and how deeply it has operated within the body.  

Above I called for research. Specifically in relation to abortion, here is what should be researched – to whatever extent is possible, and controlling to eliminate the influence of pro-choice and pro-life hyperbole and skewed sociological frameworks on the woman’s mind – On average, when a woman is prevented from getting an abortion, is her sense of body ownership really as offended as that of a woman in whom an embryo is forcibly implanted, or who is forced to give up a kidney, presumably would be? Is she as offended by people who defend her baby as by people who try to take her body part? (She knows among other things that pro-life laws would have defended her, too, when she was unborn.) Is she as offended by people who will not let her thwart what her body wants to do, as by kidney surgeons who would partially undermine what her body wants to do?

There is an assumption that every born child should be taken care of, and that hence the child is the legitimate owner of the resources it will use even though it has not purchased them. Given the premise underlying that idea, the question of the ownership of a womb becomes a very open one. Who is to say that an unborn child is not the co-owner of its womb for as long as it needs it, and that at some level of consciousness its mother will not see it that way? (See also “The Body, the Uterus, and the Question of Ownership”.)

As I mentioned in the Synopsis, while awaiting the above research and the technology for it, we in society will have to rely a lot on our intuitions. We will have to rely on our empathy and intuition about the degree of that harm, and then rely on our moral intuitions, to decide whether the degree of that harm for a pregnant woman, as we estimate it to be (taken together with all the other physical and mental harms of the denial of a particular abortion), is so great as to outweigh the harm of death for the child, with the consequence that we would feel it right to let that child die rather than to so greatly offend the sense of body ownership of the woman.

“We will have to rely on our intuition about the degree of that harm.” Let’s call those intuitions “empathetic intuitions.” (The moral intuitions of all of us as members of society about the strength or weakness of bodily rights in any particular situation are based on our empathetic intuitions about the degree of psychological offense in that situation.) And the empathetic intuitions of many, many people (including of many women who have been pregnant) do NOT seem to agree that in the specific situation of a typical proposed abortion, the harm of offending the pregnant woman’s sense of body ownership (taken together with all the other physical and mental harms of the denial of a particular abortion) is so great as to outweigh the harm of death for the child. Moreover, there are hundreds of millions of women in the world who are pro-life.

If a pro-life, pregnant woman came to know that in her political jurisdiction abortion was illegal, wouldn’t she say, “Damn right. My uterus is my baby’s only home. It’s the property of my baby as much as of me” – ? But I don’t think there are hundreds of millions of people in the world who would say that if they refused to donate an organ, it should be taken from them forcibly. And while virtually all if not all governments of the world would uphold the McFall v. Shimp ruling, many governments strongly restrict abortion.

The empathetic intuitions of nearly everyone seem to agree that the harm of offending Shimp’s sense of body ownership by forcibly taking his bone marrow (when added on to the modicum of physical harm to him) would have been greater than the harm of death for McFall. But in relation to a pregnant woman, what counts, as mentioned, is “the psychological phenomenon of harm in that specific situation,” not “biological similarities with other situations.”

This is not to say, of course, that pregnant women on average will feel no sense at all of ownership of their uterus and therefore will suffer no harm from offense to that sense. Some number of pregnant women will feel greater ownership of that body part than of a kidney. And to estimate the overall harm to such women of denial of abortion, we in society have to add to that harm all the other physical and mental harms of such denial. Though in terms of most of the harms, we unfortunately have to proceed on the basis of averages as we in society intuit them to be, in terms of physical harms caused by the pregnancy and delivery themselves, medical science can contribute a lot, and thus it is realistically possible to apply on a case-by-case basis legal provisions such as exceptions in anti-abortion laws “to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function”. (By the way, I feel that that language does not take into account the harm of offense to the sense of ownership, that is, does not take into account the woman’s bodily rights, and therefore “I personally think that we could further expand that exception.”)

I mentioned, “many governments strongly restrict abortion.” Many people will try to dismiss the laws of those countries as being religious-only. But most of those same people also say that religions are man-made, which would indicate that the religious injunctions are based on intuitions.

Pro-choicers usually try to support their claim that bodily rights always override another person’s right to life (or that a right to life simply does not extend to a right to use someone else’s body) either through thought experiments, or by appeal to legal precedent: in most legal precedent, for instance, one is not allowed to use part of someone else’s body, without permission, even after the person is dead. We could challenge the importance of legal precedent by pointing to the abundance of unjust laws in history; we could think about how human psychology might evolve in future in the direction of greater altruism than has existed in the past; but let us suppose, again for the sake of argument, that such laws actually reflect the deepest moral intuitions, which I would then consider moral absolutes (as absolute as morality can be), and which will not soon change.

The first thing to notice is that laws protecting a woman’s right to refuse the use of her uterus to her unborn have not been nearly as consistent as the McFall v. Shimp kind of ruling protecting one’s right to deny transfer to someone of various body tissues. If legal precedent were to be our standard, why look at legal precedents of merely-analogous situations (analogies always being imperfect), when there are many legal precedents regarding abortion itself? And we find that that collection of legal precedents regarding abortion represents a lot of inconsistency.

In 3 and 4 above I made the point that “bodily rights” only adds something to more obvious ethical notions when it relates to mental harm in the form of an offense to the sense of body ownership: the mere fact that an action (such as touching one’s hair) trespasses one’s bodily boundaries and therefore violates one’s “bodily rights” does not tell us whether the action is physically harmful to one or not, or mentally harmful in tangible terms. But here in this section, the point has been that even the degree of harm in the form of a psychological offense is inconsistently related to how deeply an action has trespassed bodily boundaries.

Let me try now for a systematic overview of the defects in the concept of bodily rights:

a. In the Synopsis I began to suggest that the current concept of bodily rights is quite confusing. The term “bodily rights” itself invites confusion, when it is a psychological reality (albeit related to bodily boundaries) that we are really addressing. The very phrasing “bodily rights” –

i. gives the wrong impression that conceptualizing the body and its boundaries and its rules is necessary to understand how harm is done when the body is injured. (Instead of saying “You should not violate my bodily rights in a way that physically harms me,” why not just say “You should not physically harm me”?) Therefore we get the wrong impression that the concept adds something, which it does not, to the idea of a right to freedom from unjust bodily harm, obscuring the fact that the real issue underlying “bodily rights” is psychological.

ii. “misleadingly suggests that some defined degree of trespass of bodily boundaries will always do a defined degree of harm” (to quote from the Synopsis). The concept suggests that it is bodily boundaries themselves that are ethically relevant, whereas it is the psychological sense of body ownership that is ethically relevant; and, as explained just above, that psychological sense operates with little consistency and much nuance in relation to different kinds of trespass of bodily boundaries. The unitary-sounding concept of “bodily rights” obscures those nuances, making it more difficult to study and understand them and apply that understanding to our ethics.

b. The concept, if correctly understood, is not as important as it might seem; for it provides less than it might seem to in terms of warranted protections not already provided by still more obvious ethical notions (see under 3 and 4 above).

c. Bodily rights is often cast as an absolute, which society’s accepted laws indicate that it is not (see under 8 below).

d. The concept is found very difficult to apply consistently. See a, b, c, and d earlier in this section 7.

Under 10 below, I will propose replacing the whole concept of bodily rights with something more serviceable.

And right now, in relation to c just above:

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.

Unlike what some who use the bodily-rights argument would have us believe, our intuitive sense of others’ right to freedom from bodily trespass only extends so far in terms of precedent. It is far from completely true that in no situation other than in pregnancy does society find it necessary to dictate certain uses of, or risks, to, the internal organs of another person against their wishes. Inconsistencies a and d in section 7 give us two examples – vaccine mandates (whatever is ingested or injected in a vaccination may travel and operate all throughout the body), and military conscription.

I would support a law requiring people to give blood in certain circumstances, and would also support harvesting the organs of the dead without their consent, if that could save any of the living. (There should be a little ceremony honoring the memory of the dead person.) If population pressures anywhere in the world truly seem bound to create tremendous misery (watch out for fear-mongering here), then compulsory sterilization, though a violation of bodily rights, would be a more humane and just solution than the might-makes-right approach of abortion.

Of all the pundits who argue that bodily rights entail abortion rights, some of those same pundits defend embryonic stem-cell research – which is the ultimate compulsory body-part donation. Strictly speaking there is no inconsistency in this position unless the pundit also recognizes the early human being as a person. But the contrasts of the position are worth noting: on the one hand a woman has a right to kill her unborn even if her health is in no way threatened – it is enough that she doesn’t want the early human being using her body – while on the other hand it is okay to use the body of the early human being, without its consent, to the extent of exterminating it.

So, unlike what some who use the bodily-rights argument would have us believe, the intuitive sense of bodily ownership rights only extends so far. And as already mentioned, the strength of that sense must vary in the first place from person to person – a society’s laws and customs must reflect its perception of a kind of average strength. And in relation to abortion specifically, many, many people do not intuit that that sense does give a woman a right to abort an unborn child.

Therefore, even without argumentation based on the uniqueness of pregnancy, it would be a mistake to try to impose on society a principle, or pretend that society already holds a principle, “Using another’s body, even their internal organs, without their consent is wrong to the point of justifying lethal force.”

(Regarding moral intuitions, use the link near the end.)

As regards “a society’s laws and customs must reflect its perception of a kind of average strength” a question could be asked in objection: “Why use averages? Why should not decisions be tailored to each and every individual, King Solomon style?” But there is probably an extensive literature showing the advantages of the rule of law over the rule of men.

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.

Any right is a kind of concept sustained to one degree or other by social convention. Some such concepts may be enshrined into law, that is, may become legal rights. Society needs some such concepts and some such laws. Society is free, through conscious or unconscious decision-making processes, to select which such concepts it will sustain and which it will not sustain, and which it will enshrine into law. Of course it behooves society to select the most useful concepts. Many pro-choicers want “bodily rights” to be one of society’s selected concepts, and want the term to be defined so as to mean “Using another’s body without their consent is always wrong, and a victim of such use is free to take any steps necessary to put an end to such use;” or at least they want it to be defined such that if there are any exceptions, an unborn child’s use of a woman’s body is not one of them.

Any validity that the current concept of bodily rights may have is derivative. It derives from recognizing the importance to each of us of our mental sense of ownership of our bodies. What it contains of value, and all that it contains of value, is the understanding that society should select rights so as to reflect that recognition. As we have seen above, the fact that because society decrees in many cases that a particular offense against one person’s sense of body ownership is not justified even if another person will die does not mean that society must so decree in all such cases.

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.

Bodily rights defined to mean “society must so decree in all such cases” has an obvious utility for the pro-choice side, but, many people feel, negative utility for society overall. When the current concept of bodily rights is demystified, the only meaningful right that it provides would best be termed (as mentioned under 4 above) a “right to freedom from the mental harm caused by offense to our mental sense of body ownership.” That is, physical harm and mental harm are both real and are both negative quantities, but “bodily rights” can contribute to the discussion only in terms of mental harm, and the current concept of it contributes only to the extent of pointing imprecisely and inexplicitly toward the psychology of body ownership. If society deepens its understanding of the psychology of ownership, including body ownership, then the present idea of bodily rights, confusing because it is so loosely and arbitrarily anchored on actual harm of any kind, can be dispensed with.

I would propose that in terms of a utility for society overall, a “right not to be unjustly harmed physically or mentally” (incorporating in the idea of “harm” an understanding of the psychology of ownership, including body ownership) would be a simpler, cleaner, more universal and more serviceable concept. Let society adopt this as a sort of master right and default right where other rights are not specified. An unjust harm would normally be a harm not outweighed by the good, or avoidance of harm, for other parties, keeping in mind always that offense to the sense of ownership is a form of genuine mental harm.

(Whether any other specific rights presently supported by society could usefully be phased out as well once this master right is adopted, is a question I have not thought through. I only know now that I would certainly propose it in the case of “bodily rights.”)

As we saw in 3-4 above, “bodily rights” as currently used aims to protect against harm to the mind that is related to trespasses of bodily boundaries, and also (redundantly, I feel) against harms to the body that are related to trespasses of bodily boundaries. A right not to be unjustly harmed physically or mentally would protect against all harms of that kind that are unjust, while protecting against all other kinds of harm that are unjust also.

I think that a thoughtful definition of a right not to be unjustly harmed would be informed by all the useful insights of a recognition of people’s sense of ownership of their bodies, and informed by all of society’s empathy with that sense, without being informed by wrong conclusions derived from the flawed idea “using another’s body without their consent is always wrong.”

Society already more or less does hold the concept of a “right not to be unjustly harmed physically or mentally;” what may perhaps be lacking is to see clearly how the truth that is genuinely present in the bodily-rights concept – our intuitive sense of people’s bodily ownership rights, based on our understanding that every human has, in turn, a more or less acute sense of ownership of their own body – should be incorporated into that simpler concept. We need to recognize clearly that when we say “One has a right not to be unjustly harmed physically or mentally,” there are in fact acute kinds of mental harm based on people’s acute sense of ownership of their own body. Recognizing this, “One has a right not to be unjustly harmed” will, for instance, protect against forcible bone-marrow or kidney donations – it will take into account the sense of ownership and go beyond “simply asking who is likely to suffer the greater bodily harm.” (And yet a mental harm that is acute because it is caused by a “bodily-rights” violation is still just one kind of harm, and, in a context of conflicting rights between two parties, does not deserve to be weighted more, under the principle “One has a right not to be unjustly harmed,” than an equally-acute harm whose acuteness was caused in some other way.)

Let’s get to the real root.

Regarding moral intuitions, see the paragraph with the heading Moral Intuitions, here.

“Special-rights pleading”: some may so call a right of the unborn to use someone else’s body without consent. But in fact under pro-life laws, all are completely equal.

© 2016

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Some future posts:

Life Panels

Evolution, and the Humanizing and Uplifting Effect on Society of a Commitment to the Unborn

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World