Law and Morality before the ultimate questions Ruthless Criticism

MSZ (March 1986)

Abortion, test tube babies, euthanasia

Law and Morality Before the Ultimate Questions

The ultimate questions are haunting the public. Politicians, judges, doctors, bishops, philosophers, and journalists are getting excited about the “borderline questions,” as if it were necessary to solve an urgent human problem so that certainty can finally be restored in everyday life and death.

Is the fertilized human ovum a “raspberry-like thing” and a “quickly growing substance from the very first hour”? Or, according to scientific findings, “a full human life?” What are the “ethical implications” of “in vitro fertilization”? Is “procreation at the hand of third parties” ethically justifiable? If so, is it also true of anonymous sperm donors, single women, or surrogate mothers? Do “dead human embryos and fetuses” have an “inviolable human dignity”? Must laws against “disturbing the rest of the dead” therefore be extended to include “protection against the unauthorized removal of human embryos and fetuses”? Where is the dividing line on the “legal tightrope” between legalized “physician-assisted suicide” and punishable “death on demand”? Where do these “problems” really come from and what do their “solutions” look like?

The thing about living, dying, having children

It’s not such a difficult and earthshaking thing, when not immediately looked at from a dogmatic legal and moral point of view. What is stirring in a mother’s womb is life, mere life in all its abjectness, a (partial) organism, soon equipped with some sensation and motor activity, but anything but a human being with will and consciousness. The womb, on the other hand, belongs to a human being who has had both feet firmly on the ground for a long time, who meets her needs (or doesn’t) according to her circumstances, and who has her own wishes and ideas which are, controversially, all too often, rather anti-child. The potential mother often does not wish to become one – a wish that is all too understandable in view of her own life prospects with a child and the prospects for the child. Much more understandable, at any rate, than the obsession of childless couples for a common, utterly serf-like family bond and meaning in life. Medicine offers an abundance of possibilities to save oneself from the “natural” consequence of unplanned pleasures and lovemaking, the being in the womb who knows nothing of anything and demands nothing. So, it’s clear.

As far as the opposite case is concerned, having children, there is a lot to be said against it. It costs, it obligates, it prevents one from doing a lot of things ... If civilized, modern people, even and especially those with physical complications, don’t want to go without a child and all its sacrifices at any price, but are still frantic to have one, this can be explained psychologically, although it is not understandable: they think they are worth nothing without one, that they are lacking the crucial thing, that they have to perpetuate themselves in a child – so they think completely in family-conforming terms. Secondly, the urgent desire for one’s own bodily descendant is, unfortunately, quite common and in conformity with the state. Thirdly, because of their obsession, the aforementioned people do not take their “corporeality” so literally and substitute their defective semen or womb with a third party or simply with the help of a doctor – and then possibly create a problem for themselves afterwards whether their child is really “theirs.” For the realization of this stupid life program, medicine enthusiastically implements and constantly perfects the means. By the way, if somebody doesn’t want to go without a child, it would be easier and more rational to adopt one. There are more than enough of them. On the other hand, there are worse things than the private craziness of fanatical parents who, after the deed is done, propagate their psychological trip with the anxious question whether the expense was worth it.

As far as voluntary death is concerned, someone comes to the decision that mere life for its own sake is not worthwhile, that it depends on what they get out of it – and for understandable reasons decides the question negatively. One may indeed argue whether the question why one gets so little out of life under normal circumstances, who puts up barriers to one’s needs and how to oppose them, shouldn’t have been asked sooner and more reasonably. Certainly, it is no longer a question of materialism or idealism if one chooses death under such conditions. When someone is terminal and in pain, when nothing really works any more, such distinctions are quite academic.

So what is really supposed to be so problematic about preventing the unborn from living, or about helping the helpless who no longer want to suffer from having to live? After all, both cases prove the very wretchedness of the category of life in and for itself. Moreover, they are inherently quite remote cases, when life hasn’t really started yet or is almost over. Such “borderline situations” beyond and apart from the daily dealing with life only become problematic, contentious, and alarming when life as a principle is set higher than, and thus against, the will of the person who is invoking the immediate conditions and circumstances of their life, i.e. the question of how they live. This, however, is exactly how the public debate goes. Unborn children, those not quite normally conceived, and people who wish to die are discussed as

Borderline cases of the right to life

When politicians and the general public stand up for life, this is inherently hypocritical, but it is telling. Hypocritical because, as everybody knows, the highest authorities with general approval are anything but squeamish when it comes to ruling over life and limb. Telling because in this case the subject of the debate – “life,” precisely when it doesn’t yet have a will or is no longer wanted – is based on the fact that the wishes of the living simply do not count, even not when they are put forward as an argument in this debate. That is the very nature of the legally protected right to “life.”

In this country, everyone has a “right to life and physical integrity.” This right is granted by the state; and as the founder of the rule, it immediately reserves exceptions: “These rights may be interfered with only pursuant to a law.” This means that it is fundamentally certain that every act of state violence is legal if the state permits it, but that, conversely, the state’s prohibition on the use of force applies to the private wish to quicken death or avert kids. The authorities who administer justice decide when these interventions are legal – and in doing so they respect in principle the state’s monopoly when this legal right is freely used. By the way, there is little controversy about this, and certainly not about the citizens’ duty to defend the state or the state its citizens. Somehow the question of life and death has been decided here since time immemorial, because without the defended order, no matter how many victims it costs, no one could look out for life anymore …

If at present, under the guidance of the Christian Wende government, a lively frenzy of definitions concerning the “right to life” has been launched about abortion, alternative fatherhood, as well as early resignation, then this is certainly not only or mainly due to medical advances in “artificial insemination,” to Hackethal’s manic addiction to publicity in helping the dying, or even to the mindset of medical doctors having become more favorable to abortion in pregnancy consultations. Certainly, the ingenuity of medical research in insemination, embryonic tissue cultivation and implantation has played its part in closing a few loopholes in the law. Certainly, its legal nature involves some explosive material, especially since the surrogate mother of all Christians, Mary, the faithful handmaid, does little to clarify the maze of rules and regulations. It’s not that simple to constantly separate what is permitted from what is forbidden, to clarify the property relations between sperm donor and legal father, surrogate mother and foster mother, first, second, and third hand in the test tube, to define the factual, personal, or other legal status of fresh and deep-frozen embryonic material, as well as to regulate the compensation for damages in the case of deformed test tube babies and other questions of detail that are too staggering for the layperson. In addition, the new laws must also be compatible with the old ones. Civil and criminal powers of deduction are challenged here, because “interference” is only permitted “pursuant to a law.”

Only, this is happily shouted from the rooftops officially, even the long-settled question of abortion is raised and mulled over again and again by Ministers of Families and Justice, from basic details to basic principles and back again to the last detail. This is not due to any “concern,” a practical conflict of interests or even an ongoing violation or protest against the state’s legal authority, when the politicians, together with their well-informed audience, sound out the intricacies and depths of the “right to life” and discover a legal “need for action.” It’s the other way around. Only the constitutional regulatory frenzy and the intention of political Christians to call into public awareness, even in the most remote areas of private and medical decisions, the state-supporting principles in regard to the right to life – this is the starting point for the general excitement about these last questions. The “legal certainty,” which allegedly still has to be created there, is first of all missed solely from above, because the demands have increased in the upper echelons of political power for a decent attitude on the part of the citizens towards bestowing life and death. And because in this question, first, principles of national morality are at issue and, secondly, there is room for different considerations of benefit, precisely because no practical state concern is at stake, principles are debated all the more and the people involved agitate for them. On the other hand, the small number of distinctions in the maze of rules and regulations is nobly paired with this because, after all, the validity of the principles and the the state’s responsibility should be ensured down to the last detail. As crazy as the debate may seem – the timely push by political Christians and their opponents is obvious, to enlighten the people with suitable material and to prepare them for

A few last-ditch national principles of life

To start with the last one. The question of a “life with dignity” arises as a question of death when it’s acknowledged that it’s really no longer possible to live normally. Only then do the friends of a humane death argue. The dialectic of the right to life and the duty to use it for something higher has become especially dear to the hearts of Christian politicians: On the one hand, one should not cling to life as if it were the highest private good; but then, when one sees no more sense in it for oneself, the duty to bear it should also apply as an imposition, and not to dispose of it at one’s own pleasure and whim. Medical and legal euthanasia fans don’t think any differently either. They only discover in the wish to die, when nothing more is at stake than the perseverance of the terminally ill, a legal interest which is an exceptional feature of a humane state. In order to ensure that the last emergency service in life is guaranteed to be in accordance with the rules of the profession and the law, they invent a code of ethics for when and how the doctor is exclusively permitted to get involved.

As far as childbearing is concerned, Christian politicians are no longer satisfied with the principle that decisions against childbearing may be made within the legal framework of the “indication” solution. Although this has never been a triumph of free will, it appears to the state’s junior planners to be an attack on the morality of the womb. They think it lacks legal constraints and “consultative” agitation to preferably carry to term what has been gotten underway more or less voluntarily. They do not want to change the law right away, but they want to at least bring their new spirit of the law to the people. That’s why the progressive Süßmuth reminds us again and again that the state has actually equated abortion with killing out of an entitlements mentality and only permits it in certain cases. In principle, Christian social law upholds the “equivalence of born and unborn life,” that is, the duty of the woman to serve her offspring. If possible, the thought should not even arise that the state permits her to weigh whether she also wants a child. The state itself weighs the abortion customs of its people and their socio-political regulations against its interest in the highest birth rate possible.

The most extreme criticism was voiced by the notoriously abortion-liberal President of the Constitutional Court, Zeidler, who has always preferred the “deadline” solution to the “indication” solution. In any case, it is far too good for morality if the permission to be allowed to decide to have an abortion up to a certain point in time is regarded as downright morally and constitutionally dangerous; if the weighing up of the readiness to have a child is seen by official authorities as a tendentious attack on the morality of childbirth; if the obligation of living humanity to the impossible legal construction of a personal living being that does not yet exist is the most self-evident starting point for any alternatives.

In the treatment of the medical methods for giving procreation a helping hand, the mania for inventing legal problems and the politicians’ propaganda frenzy for fundamental values can no longer to be stopped. While legal commissions take care of the next to last distinctions and legal stipulations and physicians make and discuss their progress from an ethical point of view and are universally moralized about the terrible problems that result, the Christian crew makes every effort to ensure the clear and simple principles that they hold so dear. As much as the mania for children should be promoted and regulated, family principles which suit the state must not go astray among the methods of family planning that have been born by the love of children and medicine. Government politicians, but also progressive opposition representatives like Lafontaine, sense that the medical technologies are “artificial” and dangerous to the “natural” ethics on which the bourgeois family is supposed to be based. That’s why the Minister of Family Affairs repeatedly states that the germ cell of the state is based on (feelings of) responsibility and that’s why diligent conjugal birds, pregnancy and reproduction is the natural way in which a civilized society reproduces. On the other hand, physicians can quite rightly point out that they interfere in the natural fertilization process only for this high purpose. This is an ongoing debate; because nothing can be done correctly or wrongly in this field. The whole medical, legal and ethical fuss about test tube babies only has to be regulated in a way that seems advisable and morally appropriate to the state, taking all legal circumstances into account.

The more politicians demonstrates their legal supervision of life and death, the more the other side also flourishes

The public debate between loud advocates of life

Once biological knowledge of life, medical expertise in the matter of germ cells, state legal supervision of every conglomeration of cells and ethical dogmas about the fundamental value of life are set in one, then there is a splendid debate with the appearance of objectivity and expertise about the state’s concerns. Doctors, for example, do not want to distinguish between what is medically feasible, ethically sound, socially useful, and legally unambiguous. With the old Faustian problem “may we do what we can do?” or vice versa “can we do more than we may?” they commit themselves to their imagined responsibility in relation to the state. This counts as an objective contribution, just like a public confession that the ideal of helping must also apply to dying, even if the legislator does not want to recognize it. The question about the beginning of life, which is prepared with nothing but scientific (preliminary) judgements, is as indispensable as it is arbitrary, because it is only asked in order to be able to make an “objective” decision with the answer about the ethical implications. Between zero and three months, all variants are offered along with the “conclusions,” depending on whether one wants to stir up doubts about abortion or not. Conversely, the crazy equation: “fertilization = cell division = life = becoming a person = legally protected subject” can demonstrate a civic view in all possible film versions and be “proved” or even “disproved” with the somehow human-like figure and the reactions of such an entity in the mother’s womb. Others argue less in terms of medicine than social hygiene with the expense or cost savings to the public purse of abortion or dying in intensive care units. This passes for a serious concern for people, as does the manslaughter argument about the possible abuse of legal provisions. The most absurd ideas are used to warn about the alleged freedoms with the logic of possibility. What if someone who is terminally ill suddenly wants to go on living after all? What if the heirs persuade grandpa to take poison in a weak moment? What if the surrogate mother suddenly wants to keep the child after she has contracted it away? …So, depending on your intentions, you can empathize with every conceivable worry and need you or the state may have and let your imagination run free. Such warnings prove nothing but the widespread ideal of establishing behavioral certainty in these private and borderline areas of legal dogma, i.e. of putting everything under state supervision without further ado.

When it’s about fundamental values, it’s no wonder that the moral imagination, depending on professional obsession, foams over, sometimes in the medical, sometimes in the judicial, sometimes in the political garb of spiritual leadership, and that many times there really aren’t any more civil service necessities to be discovered in the fine distinctions. The church discovers a need for pastoral action and brings the logic of life to its naked concept: service to the bourgeois state. Left Protestant and conservative Catholic politicians both recite the elementary religious catechism as a contribution to the debate: life = God's gift = mother’s duty = family cohesion = personality development = creating order and state cohesion. They have such good reasons in store as the duality of morality and nature, where everything that does not fit church and politics is disgraced in the moral code: “immoral and unnatural.”

Where the relationship between force, law and morality is consistently turned upside down and the whole world is discussing the basic values backwards, as the politicians’ responsibility for them, the science of meaning, philosophy, is not far behind. It enthusiastically takes up the issues and uses them in a modern way, “in step with current practice,” to pursue its pet absurdity: the justification of moral principles from the principles of morality.

All disputes lead back to their political starting point without much deviation:

One big call for a state decision

Philosophers provide the last arguments, physicians the first occasions, lawyers the most diverse codes, journalists the most beautiful cases from life, for the unanimous view that in the principles of life, there is always an issue to be decided which no individual may try. Higher, law making authorities are needed to provide the certainty required for such landmark decisions. In this respect, the public discussion about life, that parade object for propagandizing subservience to state commandments, already serves a political interest: it elevates the politicians into guardians of morality and commits them to its own highest principles.

That’s why the public commotion ultimately culminates in the debate about who is legitimately the right spiritual adviser for this political task: the civil servants with their political responsibility or the church with its officially recognized position in the life and customs of the state. The clergy would really like to have their spiritual sovereignty over the rulers in questions of values codified, as if everything would go to hell if they do not personally watch over the womb and deathbed with God’s blessing. They hypocritically and humbly claim that this is only the exercise of religious citizens’ right to free opinions and want to protect them from the unbearable paternalism of secular dogma. On the other hand, a peculiar coalition of advocates for the political monopoly on the use of force insists that the state in all its sovereignty has to prescribe to its own society the commandments for a life that pleases it. So they methodically argue about the right to spiritual leadership, knowing full well that the church is and remains a power in this state, and conversely, that its moral commandments are committed above all to the well-being of the state.

When the Constitutional President, Cardinals, Christian Ministers and Social Democrats argue about their responsibilities for laws and morals, then it’s not just one moralistic crow pecking out the eye of the others. Then the state’s claim to the lives of its citizens from the cradle to the grave is truly beyond dispute.