In a cartoon I saw once, Bugs Bunny asks someone when he was born. Scratching his head, the fellow answers, “I dunno, I was pretty young then.” Bugs didn’t go on to ask for a driver’s license, a birth certificate or a passport. Cartoon characters don’t usually have such documents.

You and I do have them, however. So, do they settle the question of age?

Yes and no.

Driver’s licenses, birth certificates and passports settle the question of legal age, which is based on date of birth. How else? Legal systems can recognize as valid only evidence based on objectively verifiable, observable, attestable (etc.) events such birth, at which time a certificate is issued (by a legally empowered authority) that other documents can use later as a basis for certifying legal age.

I’ve written “legal age” twice to ask whether another age concept can be meaningfully and usefully defined. It can indeed and has been.

If you suspect I’m about to enter the abortion controversy, you’re right. When I was teaching moral issues in a philosophy class years ago, abortion was one of the topics we discussed along with euthanasia and capital punishment, so I know the literature and the arguments “pro choice” and “pro life” advocates present. No, I’m not going to review them here. There is only space to state the bottom line in a book published some forty years ago that is still in print and leave it to the reader to study the arguments.

The bottom line is this. Legal age (birth age) is not the same as the age at which full moral rights are acquired -- full moral rights meaning rights you and I have. Let’s call the age at which full moral rights are acquired, “personhood age.” Personhood age precedes birth by several months, according to the book I’m referencing. How many months can vary, though there is an “objectively verifiable, observable, attestable” event that can be used to determine personhood age. That event is not conception (too early), the first heart beat (still too early), or viability (too late), as some have suggested. That event is brain function, which begins at six-to-eight weeks after conception.

8 weeks from conception (photo credit: Lunar Caustic)

The technology exists for detecting fetal brain function. This technology will no doubt improve over time to the point where using it will be as common as a sonogram, maybe covered by insurance.

As to arguments for defining fetal personhood in terms of brain function, I refer the reader to a book by philosopher Baruch Brody titled Abortion and the Sanctity of Human Life (MIT Press, 1975). On a personal note, Brody interviewed me for a job in his department at Rice University years ago. He asked me why the powerful technical machinery and unbridled Platonism about abstract entities I presented in my Ph.D. dissertation were necessary; I could only tell him to ask me again in five years, after I’d had a chance to explore the implications. Apparently, he was unwilling to wait because I didn’t get the job. (Brody passed away last year.)

Brody’s book is 162 pages, which is very short for a philosophy book. It is complex and tightly argued and be warned that it will tax your patience. Refuting Brody’s arguments is not easy. I can attest they are logically correct, so the issue is whether its assumptions are true or reasonable. They seemed so to me.

The book is very bad news for Roe v. Wade and the “pro choice” side of the abortion controversy, and not just because they are refuted. The refutation is based in part on scientific facts that are “objectively verifiable, observable and attestable” and does not in any way appeal to religious faith. Because the left generally likes to portray itself—not always correctly or consistently—as being on the side of “settled science,” the scientific component of Brody’s case will be a bitter pill to swallow. 

The book is also bad news for “pro life” advocates willing to allow abortion in cases of incest, rape, or a threat to the health of the mother. Brody isn’t so willing. He argues that abortion is morally permissible only in very few cases. Readers should be prepared for a shock just how few they are. When I explained this in class, students were speechless.

So, to come back to the question of my title, Brody’s arguments imply that we’re older than we think. For a nine-month pregnancy, personhood age equals birth age plus seven to seven and a half months.

Right now, legal systems don’t recognize personhood age as meaningful but that could change. As fetal brain function detection technology improves, it may well be possible to achieve medical certainty on the beginning of human life in the moral sense in the not too distant future. And then …

No doubt there will be strong and widespread resistance to replacing birth age with personhood age in our legal system (or any other, for that matter.) It may even be impractical to do so across the board. But if Brody’s arguments are correct, there is a moral obligation at least to consider the implications.

A frequent contributor to American Thinker, Arnold Cusmariu holds a Ph.D. in philosophy from Brown University. His publications are available online at www.academia.edu.