What is foetus?

(Oktawian Nawrot)


1.Historical background.

In 1901 a French archeological expedition to Susa, the capital of Elam, discovered an 18th century B.C. diorite stele measuring over 2 meters. In the top part of the stele there was a bas-relief showing a person being given regalia from the hands of Shamash, the Babylonian god of sun, the judge of heaven and earth. The rest of the stele was covered with cuneiform writing. Naturally, the man entertaining relations with gods is Hammurabi, and the text on the stele is of course his code of law.

From the text of the Code of Hammurabi we find out that in ancient Mesopotamian society the foetus in a mother's womb was protected by law. The Code of Hammurabi stated clearly that in the case of a criminal deed resulting with miscarriage, the perpetrator is obliged to pay a relevant compensation[1].

Financial compensations for causing a miscarriage to a woman by a third party were provided by all legislation of eastern tyrannies preserved until today. The amount of the compensation for a lost offspring (or rather a chance to have offspring) depended on the social status of the pregnant woman, the degree of the perpetrator's fault and the advancement of the pregnancy. The last of these factors is visible especially in the primary version of the Hittite Code: in the situation when the miscarriage was caused by a third party before the end of the fifth month of pregnancy, the compensation paid to the head of the family was ten half-shackles of silver; if the pregnancy did not last longer than five months, it was only half of the mentioned sum[2].

The question was approached much more strictly in the Assyrian law, which treated causing a miscarriage to a woman from the highest social strata as a crime against the state. In the case of committing such crime, its perpetrator, apart from paying a compensation to the unborn child's father, was punished by flogging and was obliged to work for his ruler in the sweat of his brow for a month. Such solution to a problem could suggest that the position of nasciturus in the Assyrian society had been greatly strengthened: the state itself was interested in its survival. Such a conclusion, however, turns out to be too early, as the Assyrian legislation completely ignored the situation when the abortion was procured with the father's consent. In view of the ideas on the nature of the unborn, another interesting thing is Article I. 50 from the Assyrian collection of laws from 1075 B.C., which relates the amount of the sanctions to the degree of the foetus's development (the more developed, the higher the sanction). It is also worth mentioning Article I. 52 of the Assyrian collection of laws, stating that a woman who consciously procured an abortion is to be impaled, and her corpse could not be buried. Moreover, this punishment was to be performed even if the woman had died during the abortion[3]. In the opinion of some authors, such a statement suggests that it was nasciturus and its life that was the sole subject of protection in this case. This hypothesis can be supported by the fact that the article mentioned does not make a distinction between single and married women and thus the interest of the father is not taken into account here. We can also come up with a statement that in the described situation abortion was treated as a crime against the state or the family.

A legal construction similar to that of the Code of Hammurabi can be found in the Exodus, being a part of the Pentateuch (the Laws of Moses). In the light of the rules contained in the so-called Code of Covenant, for causing a miscarriage to a pregnant woman whose social status - interestingly - was not defined, only a fine was provided. However, in a situation when she was hurt herself, the punishment of lex talionis was to be applied (“eye for an eye, a tooth for a tooth”).

From the above one can conclude that nasciturus was not regarded as a human being by Jewish tribes. Such a conviction was a result of the assumption that (according to Genesis, Chapter II, Verse 7) a human foetus becomes a living creature only when it is given a breath of life, the animating force from the Divine Spirit (Ruach Jahwe), revealing itself by making the first breath. This hypothesis finds a confirmation in the text of the Book of Job, touching the theme of uncommitted suffering. Desperate Job, answering his friend Bildad's accusations, says the following words: “Why did you let me out from the womb? May I have died and nobody had seen me, as someone who had never existed, put to the grave from womb.”[4]Again, we see that nasciturus was not treated as a human by the Jewish tribes. Moreover, according to Job's words, it seems a mistake to introduce a word to describe a being which has been conceived but not yet born, as it simply does not exist, does not constitute an individual in the ontological sense, being a part of the mother's body at most.

The situation of the unborn was similar in other countries of the Mediterranean, including ancient Rome, where legislation was undoubtedly at the highest level. Because of practical implications of many legal institutions, such as inheritance, it was vital to define the beginning of the existence of a human being. This problem in the Roman law was solved by means of the assumption of the rule that stated that the term persona can be applied to a human being from the moment of his birth. The proof for a living baby's birth, according to Proculians, was to be the baby's shout. On the other hand, Sabinians, the representatives of the other law school of ancient Rome, claimed that to honor the legal existence of the newborn it is enough that the baby gives any gesture made by him. In the case of serious doubts as to the foetus's being alive, its vitality was taken into account. A vital foetus was a foetus which was at least seven months old[5].

According to the above, the unborn was not regarded as an individual in ancient Rome. However, in the Romanist study one can find a rule conceptus pro iam nato habetur (the conceived is regarded as the born)[6]. The above rule was in fact a legal fiction, enabling nasciturus to gain property. The key factor was the fact that the unborn could inherit. With time, this rule was broadened to all cases where the unborn baby's interest played a part, changing itself into: nasciturus pro iam nato habetur, quotiens de commodes eius agitur (the unborn is regarded as the born, whenever his benefit is considered)[7]. It must be noticed, though, that the legislatory practice of ancient states was not always identical with the views of the intellectual elite to the condition of the unborn, the expression of that being undoubtedly the works of Aristotle.

To understand the Aristotle's concept of the development of a human being, it is necessary to introduce a few notions concerning his metaphysics. Stagirite gave as many as four definitions of metaphysics, one of which claims that the aim of metaphysics is researching the primary causes. Aristotle himself gave four causes: the formal cause, the material cause, the efficient cause and the final cause. The formal cause is nothing but the being or, as Aristotle describes it, the form (?????) of the given thing, the structure of the given object (such as the shape or construction of a table or house), its inner nature (the formal relations for geometrical figures or the soul for a human being). The material cause or the matter (?????) is what constitutes the material for the given thing, the substrate which makes the thing, what the thing is made of and lasts, such as wood for the table, bricks and mortar for the house, flesh and bones for the animals. The efficient cause, also called animating, is where the movement primarily comes from, which makes the change in things. Therefore, the efficient cause for the table will be the carpenter, for the house - the bricklayer etc. The final cause is a reason for which the given thing exists or becomes what it is to be, the motivation for the particular action or change[8].

After making the above comments we can go on to analyze the concept of human development by Aristotle. Above all, Stagirite noticed that menstruation in women stops when they get pregnant, and that the fact is a consequence of having a sexual intercourse with a man. In the face of such frugal data Aristotle referred to the laws of his metaphysics, claiming that there has to exist an efficient cause and some matter (the material cause) for any process to be initiated. According to this statement, it was obvious to claim that in the case of pregnancy the efficient cause is the man, and the role of the woman as a passive factor is to provide the material (the matter) of which the offspring will be formed.

In general, in Aristotle's opinion, the efficient cause of the existence of a human being is the man, who by introducing sperm, and with it the vital force called pneuma, to the mother's body causes the clotting of the menstrual blood (the matter). After about a week there occurs the conception and the vegetative soul (the form) enters the embryo's body. Further on, there occurs the process of differentiation of the cells and the growth of the embryo, so after 40 days in case of male fetuses there appear the sensory organs, and in the same way the sensitive soul (in the case of female embryos the process lasts about 90 days) -the embryo becomes the foetus and starts his animal life. After some undefined period of time the sensible soul enters from the outside, making the living body a human being[9].

With the appearance of Christianity at the intellectual arena of Europe, a new and energetic center was created, soon becoming the dominant one. It must be noticed that before the birth of Christ the Judaist view on the nature of the unborn had undergone a deep evolution. The Jews living in Alexandria had got to know Greek philosophy and had been subject to its influence. Aristotle's views played a special part there. The above presented interpretation of the Genesis and the Exodus had been modified, nasciturus had ceased to be treated as property and started to gain the status of a human being. With getting to know the stages of its development, the Jews accepted the idea that the developed foetus in its mother's womb is already presented with the breath of life, which according to Stagirite's terminology is the sensible soul.

In the document dated from the 1st century A.D. entitled Didache ton dodeka apostolon (The Teaching of the Twelve Apostles 2,2), being the oldest extrabiblical Christian text, one can read the following words: you shall not kill a foetus, interrupting a pregnancy, and you shall not kill an unborn baby. A similar passage referring to procured abortion can be found in St. Peter's Apocalypse, an apocryphal work by an anonymous author, published in the first centuries A.D. The reason for condemning procured abortion in the above text was the fact that the death of nasciturus happens before it is christened, and therefore the baby dies tainted with the original sin and cannot entertain redemption.

Therefore, procured abortion in early Christianity was considered as a sin. However, it did not automatically mean killing a human being. It was a consequence of the problem of how to define precisely the moment when the foetus is presented with the animating force of the Divine Spirit and becomes a full human being. The most often quoted opinion was that of Aristotle, but one could also encounter opinions that from the moment of conception we are dealing with a human being, for example the views of Tertullian and St. Basil.

Theological discussions on the subject of animation which started at that time did not have any reflection in the official doctrine of the early Church at the beginning, the expression of this being for example the canons published by the council of Elvira[10] (around 310 A.D.) and Ancyra[11] (around 314 A.D.). Those documents do not refer to biological questions, the result of this being the lack of distinction between formed and unformed foetuses. Procuring abortion in the light of these canons was not an act of murder, although it was considered a reprehensible misdeed, for which one could be excluded from the Christian community (excommunication), initially forever, later - the punishment was less strict and limited in time. It must be noted as well that the above sanctions were only for those who procured abortion to hide adultery.

In the 4th century A.D. under the influence of St. Hieronymus of Strydon the Church unequivocally declared against abortion. However, even though Strydonite treated women procuring abortion as child-murderesses, he shared the opinion expressed by most of his contemporary Christians that the murder took place only if the killed foetus was fully formed.

The same opinion was expressed by St. Augustine, one of the greatest philosophers and theologians in the history of the Church. In his Enchiridion Augustine makes a distinction between fully formed foetuses and those which have not been formed yet. Considering the question of resurrection he referred to the latter with the following words: Unformed foetuses disappear as seeds which do not give fruit. Thus, abortion at an early stage of development of the foetus was a sin but not a murder, unless it was procured to hide adultery[12].

As we can see from the above, early Christianity quite commonly honored the theory of delayed animation and treated unformed embryos as something pre-human, as it was the soul that was regarded as the constitutive element of a human being. Without soul, the foetus could not be considered as a human being. This idea was presented very strongly in the 5th century A.D. by Gennandius of Marseille: When the body has been formed completely, then the soul is brought to life and put into the body[13].

The theory of delayed animation had its reflection five centuries later in the Decretals by Raymond of Penafort. These Decretals, supported by the authority of one of the greater (if not the greatest) medieval philosophers, St. Thomas Aquinas, have been the basic corpus of the canonic law until contemporary times.

The appearance of philosophical theories concerning prenatal human development competitive to that of Aristotle was made possible only at the end of the Middle Ages by the development of natural sciences. A newly-formed Renaissance school of nature, constituting a reaction to the far-gone formalism of scholastic thinking, stated that the world should be examined on the basis of its own rules discovered by direct observation; the individual has the right to decide about truth, basing on the common sense. Naturally, this fresh air of freedom could be seen in medical sciences as well.

In the heritage of one of the greatest minds that have ever walked the earth, Leonardo da Vinci, we can find drawings showing human foetuses in a womb. Moreover, Leonardo is known to have measured foetuses. Some very valuable observations were also made by a great anatomist and surgeon, a professor at the University of Padova, Hieronymus Fabricius. It is worth mentioning here that it was him who, as one of the first, applied the comparative method in anatomical and embryological research.

Applying the empirical method in natural sciences and questioning the indiscriminate acceptance of ancient and medieval authorities resulted directly in the appearance of a new view on the nature of nasciturus. In 1620, a Flemish physician Thomas Fineus questioned the opinions of both Aristotle and St. Thomas Aquinas concerning animation. Fineus asked why presenting nasciturus with a sensible soul happens as late as after the period of 40 days from conception, if the soul is the rule organizing the body from the very moment of conception? If human soul is to be the formal cause organizing a human being, why then do we introduce graduation here and speak of as many as three types of it: vegetative, sensitive and sensible? Isn't it more proper to assume that we are dealing with the same type of soul from the very beginning, the soul alone forming the body in the prenatal period and preparing the tools to be used in future? Finally, Thomas Fineus stated that the sensible soul appears as early as three days after the intercourse, as it is the amount of time it needs to clot the menstrual blood.

Only a year later there appeared another very important opinion connecting animation with conception, by a Roman physician Paolo Zacchias. In his treaty The Medical And Legal Problems Zacchias proved that the sensible soul is present in the foetus from the very conception, and that only part of its functions is left in the state of ability for some time. However this view initially faced a massive attack from the side of traditionalists, it started to gain acceptance gradually. In 1644 the Pope Innocent III honored Zacchias with the title of General Physician of the Whole Roman Church State and with it opened to his views the opportunity to be accepted by the environment of the Catholic Church.

A huge support for theories alternative to Aristotle's concept of human development was the research of Fabricius's student, William Harvey (1587-1657). Harvey was the first to conduct a systematic research of a developing mammal embryo. In the treaty Exercitationes de generatione animalum, without hiding his sympathy to Aristotle, he claimed that the research of the sources of a human being must be started from its causes, especially from its material and efficient cause.

As to the causes, Harvey did not think they could be male or female sperms secreted during intercourse nor their mixture nor, as Aristotle claimed, menstrual blood. Naturally, he did not negate the fact that conception and pregnancy were consequences of a sexual act, but using only the primitive equipment available he was not capable of noticing egg cells or an early embryo because of their small size. Therefore, Harvey concluded in the following way: if after a sexual intercourse one cannot notice anything in the womb and it is sure that without the intercourse no offspring would appear, then the intercourse itself must be life-giving. Thus, there must occur something similar to being infected with an infectious disease transmitted by means of direct contact with the infected person. This cause, the force working in the egg, although undoubtedly introduced to the egg by both the man and the woman, must be something immaterial coming from heaven, the sun or the Almighty Creator[14].

To explain the mechanism of the conception further, Harvey referred to the analogy between this process and the creation of a thought in the brain. Like under the influence of an outer impulse which is the object there appears an impression of it by means of sensory organs, there occur conception in a mystical way by means of the intercourse between a man and a woman. Even though Harvey did not actually suggest his own biological idea of conception, he doubtlessly proved the fault of Aristotle's thinking on a medical field. It can be said that the finishing stroke to Aristotle's theory was given in the second half of the 18th century by two Dutchmen: Robert Reinerde Graaf, who described the egg follicle in a rabbit, thinking that he discovered the ovum, and Anthony van Leeuwenhoek, who discovered sperms using a microscope of his own construction.

The popularity of a philosophical concept of human development according to which animation was to occur as early as at the moment of conception was supported by the theory of another great 17th century Dutch embryologist, the author of a work which still surprises us with its precision entitled Biblia naturae, Jan Swammerdam (1637-1680). Swammerdam was the author of a new theory of embryological development - preformation, according to which the development of a foetus consists only in the growth of the parts and organs of the foetus existing from the very beginning. Swammerdam in his research concentrated mainly on the stages of development of insects: he used to say that grubs are simply young representatives of a given species which after dropping the surrounding membrane take up its mature form. This idea soon started to be extrapolated to the whole animal world and therefore to the man. In the light of these ideas, a human embryo is nothing but a miniature man (homunculus) different from a mature human being only in terms of size. Its body with all its organs is fully formed from the very conception and therefore it is doubtless that the sensible soul is present in its body from the conception as well.

The theory of immediate animation was also grounded in the views of Descartes and his famous thesis cogito, ergo sum. Searching a statement which will be capable of resisting all skeptical arguments undermining the believability of human cognition, Descartes found the answer in the phenomenon of doubt. If I doubt the truth of my cognition, then in spite of everything, I definitely doubt. If I say that the world may not exist or the reality I experience may in fact be different from what it appears to me, then it is me who is the subject expressing doubts. Therefore doubt and thought must exist even if its subject is the thought or the doubt itself. However faulty the thought may be, however mistaken can I be in my thinking, I cannot be mistaken in the very fact that I think. According to Descartes, the truth must be looked for not in the object but in the subject; not in the external world but in the man himself. Further conclusions would be only simple consequences of accepting this thesis: if I think, I must exist as a subject, as someone who thinks - cogito ergo sum. The only question left to be answered was who was that active, thinking subject; exactly this answer has contributed to the theory of animation at the moment of conception. For Descartes the thinking subject, the existing I was the being, the sensible soul, which doubtlessly exists even if the body is only an illusion. However, if this is how it is, if just the thinking being is doubtless, then it must be independent from the body, it must be a completely autonomic substance, a separate reality.

However, it must be clearly stated that Descartes himself was a supporter of the theory of delayed animation even though, as it has already been said, his philosophy surprisingly supported the theory of immediate animation. Descartes did not doubt that the sensible soul appears in the body only when the brain starts functioning and the individual becomes capable of thinking[15].

In this way, the theory of immediate animation starts to dominate: both natural sciences and philosophy supported it. Despite the fact that the theory of preformation was undermined as early as in 1759 by Casper Fridrich Wollf and his theory of epigenesis, nothing inclined towards regarding any moment of foetal life but the conception as the moment of presenting the sensible soul to the foetus.

In the 18th century a new view on the nature of nasciturus became popular; lay legislation reached the climax of amenability to punishment with regard to people procuring abortion. All legal codes published during this period penalized abortion, even if not all of them treated it equally as murder. Codex iuris Bavarici criminalis published in Bavaria in 1751 kept the distinction between animated and unanimated foetuses. According to its norms, if the foetus was animated, the woman who has procured abortion was to be sentenced to death. The moment of animation was set at more or less the middle of the pregnancy, which is the period in which the woman could be sure of pregnancy by feeling the baby moving. The end of the distinction between animated and unanimated foetuses can be seen in a penal code Theresiana published by Maria Theresa, the empress of Austria, in 1768. Here, in all cases the abortion was considered as murder and because of blood relations between the mother and the baby, it was to be penalized with a qualified death sentence. A similar legal regulation can be found in the Russian Collection of Laws dated from 1832.

With the end of the 18th century, a gradual liberalization of regulations concerning the penalties for procuring an abortion can be observed. The first example of a breach of strict regulations was a legal code published by emperor Joseph II in 1787, which is known as Josephina. Josephina also resigned from the distinctions in the prenatal period of human life, but the punishment for procuring an abortion could not be more than five years of heavy prison with public works. The most liberal was the French legal code from 1792. This document completely abolished the legal responsibility of a woman for procuring abortion on her own pregnancy. The punishment (20 years of prison) for the third party performing an illegal act to a pregnant woman, the result of which being a miscarriage, was kept, though.

To summarize this historical part, it is worth noticing that the theory of delayed animation expressed the official attitude of the Catholic Church in the subject of animation until 1869, when Pope Pius IX announced the constitution Apostolicae Sedis. Even as late as in 1713, when both Descartes's opinions and the results of Harvey's research were widely known, Sacrum Officium expressed its opinion on the question of christening miscarried foetuses in the following words: if there are justified grounds for the conviction that the foetus was given a sensible soul, then it can and even should be christened. If, however, there are no rational grounds for such conviction, then on no account can it be christened. From the quoted words one can clearly conclude that Aristotle's concept was still kept by the authority of the Church. Nevertheless, it is worth stressing that no definite amount of time that must pass from the conception to be sure that the sensible soul was there in the foetus's body was mentioned. St. Alfonso Liguori, the personal confessor of Pius VII, supported the views of St. Thomas Aquinas in the question of animation, but knowing the achievements of natural sciences, he stressed that to eliminate the risk of murder, it is safer to ban abortion completely. This view seems to show some evolution undergone by the notion of abortion. It is rather doubtless that in the opinion of St. Alfonso, there is no murder when abortion is procured before the soul enters the body of the foetus, which would comply with the long-term tradition of the Catholic Church. However, to say that banning abortion can eliminate the risk of murder concerning it is to introduce a new factor, as it turns out that the theory of delayed animation causes more and more problems with defining the moment in which the foetus is animated. The data provided by natural sciences ruin the clear opinion of Aristotle by introducing disorder and it seems that introducing the ban on abortion just in case is the only means of preventing us from committing murder. This thought was developed in 1864 by a Jesuit Jean Gury. Gury, being - as St. Alfonso - a supporter of the traditional theory of delayed animation, was strongly against abortion, as in his opinion the foetus - even if not given a soul - is assigned to become a human being. Aborting pregnancy is therefore an anticipated murder. Let us note here that this opinion lays grounds for starting to consider a human embryo as a human being, having a sensible soul as early as at the very beginning of its prenatal life.


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As we can see a discussion concerning animation, which is the moment of endowing the human foetus with the soul, has its roots in antiquity. Philosophers, theologians, doctors and lawyers took part in it. They defended the views according to which the human soul enters the body, and in this way a human being is created, at the moment of insemination, at some specific point in the prenatal period or at the moment of birth. It is interesting that the problem has not been solved until now and it echoes in public debates on the subjects of abortion, artificial insemination or cloning. It is worth considering, then, whether the achievements of contemporary medicine and its domains can in some way help us solve this puzzle.

2. Insemination Versus Animation.

Not only in popular scientific essays, but also in typically scientific studies, one can very often come face to face with the statement that the beginning of the prenatal development of a human being starts with insemination, which is the fusion of female and male gamete. At this point the question when a human being appears seems pointless. Since the development of a human being begins with insemination, how can we ask when this being is created? It turns out, however, that the question can still be asked, even with the above assumption. Let us take the analogy with a building. If one wants to put up any building, it is necessary to prepare the project, secure the area, dig out the foundations and gather thebuilding materials beforehand. The difference between the activity of building and the house itself are different. Moreover, we must notice that it is very difficult to determine the point at which we are already dealing with the house. Would we call the foundations the house? No, we would not. And if we put up the first floor? The house appears only at some point after the beginning of the construction and we are not dealing with the house at the moment of making the project or gathering the materials necessary to build it. It is possible that this is also the case with the human being: may the first period just be a preliminary stage, and the real human might appear only later? If we assume that the human soul is what constitutes human existence, we must consider whether it can appear as early as at the moment of insemination and solve the problem in this way.

Insemination is doubtlessly the breakthrough in the appearance of a new life. It is certain that as a result of it there appears a new living organism, completely different from the organisms of its mother and father. The zygote created in this way characterizes itself with a unique genetic code which determines such features as skin, eye and hair colour, height, build, weight, facial features etc. in its future life. Male and female reproductive cells have 23 chromosomes each and as a result of their fusion there appears a new cell having the correct number of 46 chromosomes. The view treating insemination as the moment in which a human being is created is, among others, the expression of the official doctrine of the Catholic Church. It was perspicuously expressed by J. T. Noonan, a Catholic professor of law, in the work entitled The Morality of Abortion. Noonan claimed that anyone conceived by a man and a woman is human[16]To him, the genetic criteria was the deciding argument for the fact that the human being is created at that particular moment. A being with a human genetic code is man[17]. Therefore, all that was conceived by humans is a human[18], because nothing but a human can be created out of human reproductive cells[19]. It is also worth quoting the opinion of Paul Ramsey, a Protestant bioethician: Genetics teaches that we were from the beginning what we essentially still are in every cell and in every generally human attribute and in every individual attribute. There are formal principles constituting us from the beginning. Thus genetic seems to have provided an approximation to the religious belief that there is a soul animating and forming a man’s bodily being from the very beginning[20].

It must be stressed that the genetic criteria as the ultimate instance deciding about the moment of the origination of a new human individual is propagated by people not connected directly to the Church as well. As we have already mentioned, immediately after the fusion of the gametes we are dealing with a new organism, even if it is completely dependent from the organism of the mother.Going through various stages of its development, it will all the time be the same individual being, the identity of who was determined at the moment of insemination. Thus, the zygote and the adult person who will grow out of it possess the same genetic identity[21]. Professor J. Lejeune, MD, the head of the Institute of Genetics at R. Descartes University in Paris, stresses that in the light of contemporary knowledge the statement that after insemination there appears a new human being has already ceased to be the matter of preference or opinion[22]. Similarly, a Polish scientist, W Fijalkowski, MD, claims clearly that human life starts at the moment of insemination, when occurs the fusion of chromosomes, and that it constitutes a continuum until death[23]. The human individual created at that moment simply goes through various stages: the zygote, the embryo, the foetus, the infant, without ever ceasing to be a human being[24]

Doubtless as it is that insemination is the beginning of the life of a new organism, there is a lot of controversy as to the thesis that this is also the beginning of the life of a human being. It turns out that not all that has been conceived by humans must be a human. The truth is that as a result of aberration of chromosomes, about 8 to 12 % of human zygotes develops into empty foetal ova, without the baby. Therefore, conception occurs, but no human being is conceived, even though the foetal ovum in this case certainly has human origins. Moreover, possessing a human genotype does not determine that we are dealing with a human being. Take any human white blood cell and it will contain a complete genetic information. We should not forget, either, that for example foetal membranes also consist of human cells having human genotype, but they are not people, they live their own life and after the delivery of the baby they are simply thrown away[25]. Cellular biopsy, enabling us to discover genetic diseases, is currently done on postembryonicmembrane chorion tissue, the genetic structure of which is identical with the structure of the foetus, but it certainly is not a human being.

The genetic determination of the embryo does not itself condition the fact that we are dealing with a human being, either, because the genome must be activated for the human individual to appear. It is surely known that the genome of a human embryo is notactivated by the bi-cellular stage, and it may even be sleeping until the four-cell stage, because up to this stage of development the dynamics of the zygote is controlled by the RNA of the mother. From this point of view, the zygote in itself is active, but its development is not conditioned by the genetic programme according to which the embryo, and later the adult human, will develop. To illustrate this process, let us imagine a child who has obtained the genes responsible for hemophilia. As long as these genes are not expressed, the disease does not appear, and in this way the child remains healthy: it will be a potential hemophiliac, not a person actually suffering from hemophilia. Therefore, even though a new ontologically and genetically different from its parentsorganism appears as a result of chromosome fusion, it is only a potential human being[26]

Another argument against treating the chromosome fusion as the frontier point from which we are dealing with a human being equipped with a soul is the possibility of appearance of monozygotic multiplets, which are the multiplets originating from one zygote. It turns out that blastomeres created during striation are totipotential, which means that from each of them can give rise to a living human individual. At such an early stage of development we cannot therefore say whether one or more human beings will originate from one zygote. Thus, we cannot claim that from the moment of insemination we are dealing with a human being, as it turns out that the human being at some point would lose its ontological identity: from one person we would suddenly have two. 

The next argument against treating insemination as the moment in which a new human being appears is the possibility of appearance of the so-called chimeras, who are human beings resulting from the fusion of two or more embryos[27]. If we assume that we are dealing with a separate human being right after the fusion of a male and female gamete, what would we do with a situation in which two such beings blend into one having two genetic lines? Would we say that the two beings ceased to exist and a new one started? Or would we assume that one organism had absorbed the other and in fact the former will develop into a human being and the latter will cease to exist? Or maybe we would say that there are still two individuals existing in one body?

3. The Argument from Implantation and the Rise of a Human Individual.

For the reason of the problems presented above many authors tend to assume that the moment of the apparition of a human individual is some moment between insemination and birth. Of course there can be many criteria here. The definition of a human being which gains considerable popularity is the definition on the basis of the criteria such as: indivisibility, imblendable and the possibility of distinguishing it from other beings[28]. Some authors defines the moment in which the above criteria are fulfilled as the end of the process of implantation of blastocyst in the mucous membrane of the uterus (the 14th day hypothesis).

After 12-13 days from insemination the blastocyst is already settled. Until that time, in the opinion of the 14th day hypothesis supporters, we are only dealing with some kind of a genetic individual, but not a personal individual. After the process of implantation is finalized, on the 13-14th day there appears primitive streak and from this moment, according to many authors, for the first time we are dealing with a single, multicellular and individual living being, who moreover possesses a final cephalic-caudal rachis of the body, dorsal and celiac area and bilateral symmetry. The cells lose their totipotentiality: from this moment their development will be strictly directed towards the creation of a human individual. With the achievement of the primitive streak stage by an embryo, we can say with full conviction how many new individuals will have the opportunity of being created (the possibility of occurrence of twins has already been excluded). From this moment, if we cut the embryo in half in order to create two individuals from its cells, we would not achieve anything: we would only kill the new being. After the appearance of primitive streak we are dealing not only with a genetically defined individual, as this individual is directed towards further development of a biologically individualized representative of the human species. Therefore apart from genetic determination we can also speak of ontological determination. 

To sum up, the supporters of the 14th day hypothesis claim that up to the primitive streak stage we cannot speak of an individual being equipped with a soul. Before a blastocyst loses its pluripotency, there can appear one or may human individuals (theoretically, a human being can be created from each separate part of a blastocyst). It is thus hard to recognize as an individual an embryo just after insemination, as it has the potential to become two individuals. Until the moment of the apparition of primitive streak we are dealing with a collection of cells, which actually, even though loosely connected, are neither one thing nor many things. Only after the stage of primitive streak is reached, the possibility is lost: we face a new, separate individual. 

4. The Neurological Criterion for Being a Human.

Many people connect being a human individual equipped with a soul with the ability to feel, because an individual who does not feel, cannot experience anything – even the fact of its own being. The apparition of consciousness, which in the opinion of the supporters of the neurological criterion makes us people, is the frontier between humanity and the subhuman stage of development. Only the appearance of cerebral structures let us speak of the thinking nature of nasciturus, at the same time including him in the human family. Until then we can at most speak ofa living mass of cells having the potential to become a human being. The brain constitutes the center of an individual, but rather the whole individual.

Practically, the neurological arguments, or rather the reactions of an embryo and a foetus connected with them, cause great emotions. One can often meet charts comparing the embryology data (sometimes untrue) with the abortion methods and the reactions of nasciturus caused by pain[29]. The allegedly unbelievable sufferings which are inflicted at the unborn are expected to be the proof for the fact that we are dealing with a fully developed human being. A clear example of such practice is the film The Silent Scream

What does embryology speak of the ability to feel anything by nasciturus? Many authors connect brain activity, and therefore the ability to feel and the appearance of consciousness, with its bioelectrical activity, which takes place just after six weeks from the conception. It is possible that together with the improvement of medical equipment this moment will be moved to earlier and earlier stages of embryonic development. Thus, the embryo would become a human being as early as six weeks after insemination, because there exists not only genetic or ontological, but also psychic individuality[30]. In the light of contemporary medical knowledge this thesis seems doubtful, though. Registering the bioelectrical activity of the brain by means of electroencephalography (EEG) does not prove anything. If we place two electrodes for example at both sides of the membrane of the paramecium, we will receive an electrical signal changing in time as well, but we will not treat that as the proof for the fact that paramecium possesses an organized psychic life. Actually, EEG does not prove anything but the fact that we are dealing with a living organism. In the case of placing the electrodes at a particular part of the brain, what we get is an EEG graph proving that the cells constituting it are living. Of course, the brain of an adult person shows some characteristic electrical activity indicating the existence of working neurons, and therefore consciousness, but in the case of a six-week old embryo it is difficult to speak of such signals[31]

Practically, the notion of bioelectrical activity of the brain of an early embryo is rooted in the survey conducted by two Finnish surgeons in 1963. The scientists have performed a series of abortions by caesarean section on foeta in early stages of their development (59 to 158 days). After each abortion they placed electrodes on the yet living embryo, in three parts of its brain: the cerebral pith,hypothalamus and on the surface of the cortex . After a series of measurements it turned out that bioelectrical activity in the cerebral pith existed in all the examined foeta (from the 84th day it could be also caused by touching the area of the lips of the foetus). In older foeta the electrical activity was observed in hypothalamus as well. In no case, though, was the activity observed in the area of the cortex. It is worth mentioning as well that a bioelectrical activity similar to the one described above was observed by stimulating the muscle of the leg of the foetus[32].

The already mentioned film The Silent Scream very suggestively presents a twelve-week-old foetus, on which abortion is performed. Dramatic pictures are accompanied by the following commentary: now this tiny person of twelve weeks is a completely developed, fully recognizable human being. It has had brainwaves for at least six weeks…[33]As much as we know about the anatomy and functioning of the brain, it is, to say the least, a misunderstanding. A twelve-week-old foetus does not have any connections in the cortex and therefore it is unable to feel any emotions. Also, a foetus in this period cannot consciously try to avoid danger, its moves have nothing to do with volitional acts[34].

When does nasciturus start to be able to feel? Part of the authors claim that it happens between the twenty-fifth and thirty-second week of pregnancy, as this is the moment when the synapses in the cortex are created[35]. However, it turns out that simple feelings, such as joy or pain, are located in more primitive areas of the brain, which though are formed not earlier than before three months from the conception. On the other hand, we know that in the third trimester ofpregnancy the ability to feel does exist. Thus, the sensitivity to external factors, and possibly consciousness, appears between the end of the third and the beginning of the seventh month of pregnancy. Doubtlessly, this feature does not appear all of a sudden, it is not then possible to set the precise limit before which the foetus does not feel anything for sure, and after which it is capable of experiencing a whole scope of human sensations. This uncertainty refers therefore to the second trimester of pregnancy: in the first trimester the embryo and later foetus surely does not feel anything and in the third it doubtlessly has the capacity of feeling[36]

5. The Human Being and Birth.

To finish with, it is worth mentioning one more opinion concerning the nature of the human being, according to which the name of a human being can be attributed to an autonomic organism, living outside the organism of the mother who is a representative of the human race. This view can be surprising, especially in the light of the criteria for being a human individual quoted above. Nevertheless, this opinion must be presented, even for the sake of its domination in many legal systems of the world. It is worth mentioning that this view can be found also in rabbinic law.

The first characteristic feature of the described point of view is the omission of all factual differences, crucial for obtaining the status of a subject, or rather humanity, between the embryo and the foetus on various stages of its development. Thus, both the inseminated ovum and the developed foetus on the verge of birth do not deserve to be recognized as human beings in the same way. Humanity appears with the birth of the child: until this moment it can be treated only as a part of its mother’s organism, not an individual being.

In connection to the above statement, it is very important to delimit clear criteria of birth as a moment in which the foetus leaving its mother’s womb becomes a human. In the literature devoted to this subject three main criteria are distinguished:

  1. The physical-physiological criterion, according to which the creation of a new human individual occurs at the moment of total separation of the child’s organism from the organism of the mother. 
  2. The physical criterion – to state the existence of an autonomic human being it is enough to observe at least partial removal of the child’s organism from the organism of the mother.
  3. The obstetric criterion, giving the status of a human to the foetus as early as at the moment of puerperal action.
As it is visible from the criteria quoted above, the search for clear and unambiguous points of passage from the prenatal to postnatal period is in fact absurd. It is not absurd, though, the struggle to answer the question: at which moment the born becomes a human. In fact, it is some convention, however with important social, economical and above all legal consequences. It seems dubious, though, whether any of these moments was so important in the biological development of an individual that we could tie animation with it.

6. Summary.

The creation of a human being is the process still being a mystery and causing a lot of controversy. Thus, the attempts to answer the question when a human being is created and when he obtains soul also cause plenty of emotions. The way of looking at the unborn has come through various stages through centuries as well. One can show periods in which a considerable part of the society tended to regard the inseminated ovum as a human being, as well as those in which the term human being was attributed only to the postnatal period in human life. 

The dispute on humanity is still in progress and the question of determining the neuralgic point, after which the conceived becomes part of the human family, still remains unsolved. The data from detailed sciences are submitted to various interpretations, the results of which are often determined by the earlier opinion of the scientist expressing his opinion on the subject. This discrepancy concerning the interpretation of medical facts is visible also on the legal ground: depending from what the legislator regards as a fundamental value, he tends to honour either the genetic criterion, or the 14th day hypothesis, or the neurological criterion as the measurement for humanity. 

It is doubtless that the creation of a human being is a process. Even if we assume that it is created at the “moment” of insemination, we must not forget that the insemination itself takes time. There appear attempts to explain this problem but they only give rise to new questions and as a consequence, one might say that the more we know about human life at its prenatal stage, the more difficult it is to set the limit behind which the embryo or foetus becomes a human. The insemination itself is a doubtless breakthrough in the creation of a human life. As a result of this, a new living organism is created, completely different from the organisms of its mother and father, equipped with a unique human genetic code. But on the other hand, it turns out that such an organism does not have to develop into a human being, as there is a possibility that it will only create an empty fetal ovum, possessing human DNA, but surely not being a human.

In the light of the above statement, it seems that the earliest moment which can be treated as an appearance of a new human individual equipped with a soul is the end of the implantation process, which is the so-called 14th day hypothesis. It is worth noticing that this view finds its supporters among the representatives of the Catholic Church as well. For example professor Tadeusz Slipko, a priest, claims that the general assumption that the man from the beginning of his existence is a person can be useful in preaching, catechesis, publications, but not in scientific thought, as it can do more harm than good there, especially if the discourse concerns the right of the unborn to life[37].

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[A presentation of the author, who is Fellow of the Foundation for Polish Science (FNP), can be found in Episteme N. 6.]

Institute of Philosophy and Sociology
University of Gdańsk
ul. Bielańska 5
80-851 Gdańsk, Poland


[1]The Avalon Project at the Yale Law School, The Code of Hammurabi, http://www.yale.edu/lawweb/ avalon/hamcode.htm, §209 - §212.
[2]Ancient History Sourcebook: The Code of the Nesilim, c. 1650-1500 BCE, http://www.fordham.edu/halsall/ ancient/1650nesilim.html, §17, §18.
[3]Ancient History Sourcebook:The Code of the Assura, c. 1075 BCE, http://www.fordham.edu/halsall/ ancient / 1075assyriancode.html.
[4]Book of Job, 10, 18-19.
[5] K. Kolańczyk, Prawo rzymskie, Warsaw 2000, p. 177.
[6] W. Litewski, Rzymskie prawo prywatne, Warsaw 1999, p. 114.
[7] Ibidem.
[8] M. Krąpiec, Metafizyka, Lublin 1995, p. 368 – 400.
[9] N. Ford, Kiedy powstałem? Problem początku jednostki ludzkiej w historii, filozofii i w nauce (When did I begin? Conception of the human individual in history, philosophy and science), Warsaw 1995, p. 51 – 54.
[10]The Council of Elvira, canons, http://www.bu.edu/religion/courses/syllabi/rn301/canons.htm, canons 63 – 64.
[11]The Council of Ancyra, canons, http://www.newadvent.org/fathers/3802.htm, canon 21.
[12] J.T. Noonan, An Almost Absolute Value in History, (in:) The Morality ofAbortion. Legal and Historical Perspectives, Cambridge 1970, p. 15 – 16.
[13] L. Kostro, Eros, sex i aborcja w ocenie katolicyzmu krytycznegoGdansk 2002, p. 51.
[14] N. Ford, op. cit., p. 71 -75.
[15] Zob. L. Kostro, Philosophical implications of modern human embryology considered in relation to Cartesian and neo-Thomist anthropology (in:) L. Conti, M. Capria (ed.), La scienza e i vortici del dubbio, Napoli 1999, p. 456 – 457.
[16] J.T. Noonan , op. cit., p. 54.
[17] Ibidem, p. 57.
[18] Por. L. Kostro, op. cit., p. 41.
[19] Por. W. Fijałkowski, Ku afirmacji życia, Warsaw 1989, p. 68 and next.
[20] P. Ramsey, Reference Points in Deciding about Abortion, (in:) J. Noonan, op. cit., p. 67.
[21] N. Ford, op. cit., p. 146.
[22] J. Lejeune, Czym jest ludzki embrion?, Gniezno 1999, p. 30 – 47.
[23] W. Fijałkowski, Dar rodzenia, Warsaw 1985, p. 58.
[24] S. Schwarz, The Moral Question of Abortion, chapter 1: Is the Being in the Womb a Real Child?,Continuum of Human Life, http://www.ohiolife.org/mqa.
[25] L. Kostro, op. cit., p. 41 – 42.
[26] N. Ford, op. cit., p. 155 – 156.
[27] N. Ford, op. cit., p. 181 – 188.
[28] L. Kostro, op. cit., p. 47.
[29] S. Schwarz, op. cit.,Chapter 2: Is Abortion the Killing of this Being?Methods of Abortion, http://www.ohiolife.org/mqa.
[30] Ibidem.
[31] H.J. Morowitz, J. S. Trefil, Jak powstaje człowiek? Nauka i spór o aborcję, Warsaw 1995, p. 127 – 131.
[32] Ibidem, p. 129 – 130.
[33] Ibidem, p. 132.
[34] Ibidem, p. 132 – 133.
[35] Ibidem, p. 122 – 125.
[36] J. Kis, Aborcja. Argumenty za i przeciw , Warsaw 1993, p. 140 – 142.
[37] T. Ślipko, Za czy przeciw życiu. Pokłosie dyskusji, Krakow – Warsaw 1992, p. 32.