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 haunt the public. Politicians, judges, doctors, bishops, philosophers, and journalists get worked up over the “borderline questions” as if it is a matter of solving an urgent problem of humanity which at last brings certainty to everyday life and death.

Is the fertilized human ovum a “raspberry-like thing” and a “quickly growing substance from the very beginning”? Or “a full human life according to scientific knowledge?” What are the “ethical implications” of “in vitro fertilization”? Is the “creation of life by the hand of third parties” ethically justifiable? If it is, is it also true for anonymous sperm donors, single women, surrogate mothers? Do “dead human embryos and fetuses” have an “inviolable human dignity”? Must laws against “disturbing the peace of the dead” also therefore be extended to the “unauthorized removal of human embryos and fetuses”? Where on the “legal tightrope” lies the demarcation between legally permitted “physician assisted suicide” and punishable “homicide on demand”? What really agitates these “problems” and how their “solutions” are seen?

The matter of life, death, child bearing

Looked at for once not both dogmatically legally and dripping with morality, it is not so difficult and such an earthshaking affair. What stirs in the mother's womb is life, mere life in all its pitifulness, a (partial) organism soon equipped with some sensation and motor activity, but far from a person with will and consciousness. The womb on the contrary belongs to a human being who has been living on both legs for a long time, pays for her circumstances at her own expense (or not) and holds her own desires and thoughts; in the controversy, only too frequently quite child-hating thoughts. The potential mother often does not want to become one – an only all too understandable wish in view of her own life prospects with a child and the prospects for the child. This is much more understandable, anyhow, than the obsession of childless couples for a common, utterly serf-like family bond and life meaning. Medicine offers an abundance of possibilities to save one from the “natural” consequences of unplanned lust and lovemaking, the being in the womb who knows nothing of anything and demands nothing.

As for the opposite case, childbearing, on the other hand, there is a lot to be said against it. It costs, it obliges, it keeps one from doing a lot of things ... If civilized contemporaries, especially those with natural complications, still don’t want to go without a child and all its sacrifices but are nutty to have one at any price, this is to be explained first psychologically, even if it is not understandable: they believe they are worthless without a child, they are lacking something crucial, they have to immortalize themselves in a child – to think thoroughly in line with the family. Secondly, the urgent desire for one’s own physical descendant, unfortunately, is quite common and agreeable to the state. Thirdly, the aforementioned people, because of their mania, take liberties with their “corporeality” and substitute their defects in semen or womb with a third person or simply with a physician's hand – and then make a possible problem for themselves whether their child is also really “theirs.” Medicine enthusiastically implements the realization of this stupid life program and constantly perfects the means. Incidentally, it would be – if one can not go without a child – naturally more simple and more rational to adopt one. There are more than enough. On the other hand, there are worse things than the private madness of fanatical parents who reproduce their psycho-trip with the anxious question whether the cost has been worth it.

Concerning, finally, voluntary death, someone comes to the opinion that mere life is not worthwhile for its own sake, that it depends on what one gets out of it – and decides the question, for understandable reasons, negatively. The question as to why under normal circumstances one has so little from life, what puts barriers up to one’s needs and how to resist against them – one may indeed argue whether or not this should not have been put sooner and more reasonably. Certainly, it is no longer about materialism or idealism if one chooses death under conditions in which one is terminal and goes to the end in pain; if there really is nothing more, such distinctions are quite academic.

What should really be so problematic about interrupting unborn life; in helping those who are helpless and do not want to suffer any more in life to die? Ultimately, both cases just prove the inadequacy of the category of life in and for itself. Moreover, it concerns quite far-off cases if indeed the life has not yet properly started at all or is already virtually over. Such “borderline situations” before and after everyday life management become questionable and contentious only if life as a principle is placed more highly than the will and thus against the will in its immediate conditions and circumstances of life, thus the question how one lives. The public debate, however, goes exactly like this.

The unborn and those preparing to die are discussed not as completely normal procreation and death, but namely as

Borderline cases of the right to life

If politicians and the general public stand up for life, this is primarily a hypocrisy, but a characteristic one. Hypocrisybecause, as everybody knows, the highest authorities with general approval are far from squeamish when ordering over life and limb. Characteristic if only because in this case the subject of the argument – of all things “life” precisely when it is still completely without will or is no longer wanted – is based on the fact that the wishes of the living person simply does not count, and indeed also not where they are made the argument in this debate. This is included in the legally protected right to “life.”

In Germany and other democracies, one has a “right to life and physical intactness.” The state grants this right; and as the founder of the rule, it immediately reserves exceptions for itself: “These rights may be restricted only on the basis of a law.” It is thereby basically fixed that every act of state violence is legal if the state permits it, but that, conversely, the private wish to shorten death or to have an abortion is subject to state stipulations. The justice administration decides when the aforementioned interventions are permitted – they thereby heed in principle the state monopoly on the free use of this legal right. This is barely controversial, especially not when it comes to the duty to defend the state. Here somehow the question of life and death has been resolutely decided for all time, because without the defended order, and the many victims it costs, no one would oversee life any more ...

If currently the government evaluates abortion, alternative fatherhood as well as premature abdication, and lively definition debates concerning the “right to life” get underway, then this is certainly not only or mainly because of medical advances in “artificial insemination,” a manic public addiction to assisted death or even because the medical mindset has become more favorable to abortion in pregnancy consultations. Certainly, the inventiveness of medical research in insemination, embryonic engineering and fertilization has contributed its part to the fact that a few gaps in the law must be closed again. Certainly, it involves some explosives for the law, particularly as the surrogate mother of all Christians, Mary, the faithful servant girl, contributes little clarification in the maze of rules and regulations. It is not at all so easy to separate the permitted from the forbidden, to clarify the ownership structures between sperm donor and legal father, surrogate mother and foster-mother, the first, second and third hand in the test-tube, to define the subject, personal status or other legal standing of fresh and deep-frozen embryonic material, as well as to regulate the damages to messed up test tube babies and other penetrating questions that are not to be thought out by nonprofessionals. Besides, the new laws must still fit the old ones. Civil and criminal powers of deduction are challenged here only because “these rights may be restricted.”

Only, all this is happily shouted in public, the long regulated question of abortion is raised again and mulled over by Ministers of Families and Justice time and again, from the basic detail and back down again to the last detail. This is not owed to any “concern,” a practical clash of interests or even an ongoing violation or protest against the legal authority of the state when politicians plumb the depths of the “right to life” and discover a legal “need for action.” It is the exact opposite. All the regulatory fury of the constitutional state and the agenda of Christian politicians who shout into public consciousness, even in areas of private and medical decisions, state-supportive principles with regard to the right to life – this is the starting point for the general excitement about these last questions. The “sound legal protection,” which must allegedly always be first categorically founded there, is lacking first of all solely from above, because the claims from the executive floors of the political authority must be suitable for a decent attitude from the citizens towards life and death. And because in this question, first, principles of state morality are up for discussion and, second, space remains for diverse considerations of usefulness, precisely because so surely no practical state concern is at stake, principles are argued about on the one hand all the more and the people involved are agitated for the same. On the other hand, the rage for hair-thin distinctions splendidly matches the maze of rules and regulations because, finally, the validity of the principles and the responsibility of the state is to be ensured down to the last detail. So insane looks the debate – the contemporary pressure of the Christian politicians and their opponents is to enlighten the people into proper material and to establish

A few up to date state life principles

To start immediately with the last. The question about a “life with dignity” on the way to death is posed as a question if one admittedly cannot really live normally any more. Only then the friends of humane death argue. The dialectic of the right to life and duty has become particularly dear to Christian politicians, who use it for higher things: On the one hand, one should not hang on to life as if it is the highest private property; however, when one sees no more sense in it for one’s self, the duty to endure it should also apply as an imposition and not be disposed of according to one’s own desire and mood. The medical and legal fans of euthanasia also do not think any differently here. In the wish to die, if guaranteed that nothing more is at stake than the will to persevere of the terminally ill, they merely discover an exceptional legally protected right which distinguishes a philanthropic state. They invent a special code of ethics as to when and how the doctor may become exclusively active so that the last emergency service in life is also guaranteed to take place lawfully and according to standards.

With regard to child bearing, the politicians who want to reverse the abortion law are discontent with a law that may allow a woman to decide against child bearing. To the state procreation planners, this appears to be no triumph of the free will, but an attack on the morality of child birth: legal constraints and “consultative” agitation are lacking to maybe encourage the woman to carry to term what the free will has more or less got underway. If they do not want to immediately change the law, they at least want to spread among the people their new spirit of the law. They therefore remind again and again that the state has actually equated abortion with murder and has permitted it only in certain cases out of an entitlements mentality. Basically, they hold to the Christian social law of the “equivalence of born and unborn life,” thus the duty of the woman to serve the next generation. The thought should never possibly arise that the state permits consideration of whether one wants a child. It weighs the abortion customs of its people and their sociopolitical regulation against its interest in as high a birth rate as possible.

The extreme that announces itself against it in criticism are the objections of the notoriously abortion-liberal constitutional court president, who has always preferred the “time period limits” solution compared with the “social or criminal indications” solution. It is in any case far too good for morality if the permission to be allowed to decide for oneself on an abortion is considered almost a morality- and constitution-endangering thing; if the consideration of readiness for children by the authorities shall be deemed an attack on the morality of child birth; if the duty of living human beings vis-a-vis the ridiculous legal construct of a personal living being that does not yet exist at all is the most self-evident starting point.

With the treatment of the medical methods to help procreation along, the manic invention of legal problems and the propaganda rage of basic values politicians are no longer to be stopped. While legal commissions worry about legal definitions and physicians make and discuss their progress under ethical criteria and everywhere the dreadful resulting problems are moralized, the Christians provide with all their power the clear and simple principles that they hold so dear. So much does the child mania deserve promotion and regulation, state-agreeable family principles must not be lost sight of in the methods of family planning which the love of children and medicine have given birth to. Government politicians, but also progressive opposition representatives, scent in the medical technologies “artificialness” and dangers to the “natural” ethics on which the bourgeois family is to be based. So the Minister of Family Affairs again and again issues protocols that the germ cell of the state is founded on (responsibility) feelings and therefore fruitful conjugal birds that get pregnant and multiply are the natural way a civilized society reproduces itself. On the other hand, physicians can refer again completely by right to the fact that they interfere in the natural fertilization process only for this high purpose. A permanent quarrel; because nothing can be made true or false on this field. The whole medical, legal and ethical fuss around the test tube baby must be regulated only in such a way that, to the state, it appears to show consideration for all legal circumstances and conformity to morality.

The more politics demonstrates its legal surveillance over life and death, all the more blooms on the other side

The public debate between noisy advocates of life

If from the start all biological knowledge of life, medical technology in the matter of germ cells, state legal supervision over every conglomeration of cells and ethical dogmas about the basic value of life are set together, then everywhere the state concerns are debated in the light of objectivity and expertise. Doctors in no case want to correctly distinguish between, for example, medically feasible, ethically perfect, socially useful and legally unambiguous. With the old Faustian problem “may we do what we can do?” or also in reverse “can we do more than we may?” they obligate themselves in connection to the state on their conceited responsibility. This just belongs as a real contribution like a public confession that the ideal of helping must also be valid for dying, even if the legislator does not want to recognize this. The question about the beginning of life, prepared with loud scientific (pre-) rulings, is here just as indispensable as arbitrarily decided, because it is only posed in order to be able to decide the answer about ethical implications “objectively.” Between zero and three months all variations are offered in the “conclusions,” depending on whether one wants to provoke qualms about abortion or not. In reverse, the insane equation: fertilization = “cell division” = life = “growing” person = legally protected subject brings every possible variation to the bourgeois state outlook and are “proved” or also “disproved” by the somehow human form and reactions of a thing in the mother’s womb. Others argue less medically than social-hygienically with the expenses or cost savings which prolonged dying in intensive care units bring for the state treasury. As a serious concern about people this is to be taken as seriously as a killer's argument of the possible abuse of legal regulations. The most absurd conceptions are endeavored with the logic of possibility to warn about the alleged freedoms. What if someone who is critically ill suddenly wants to continue living? What if the inheritors persuade Grandpa to take poison in a weak moment? What if the surrogate mother nevertheless suddenly wants the child and has contracted it away? … Thus one projects, according to intention, every conceivable self-encumbering or state-encumbering concern and trouble and gives free reign to the imagination. Such warnings prove nothing but the common ideal to produce behavioral reliability even in these private and borderline areas of legal dogma, thus smoothly subordinating everything to state oversight.

If it is about basic values, it is no wonder that the moral imagination froths over according to professional narrow-mindedness, sometimes more in the medical, sometimes in the judicial, sometimes in the political attire of spiritual leadership and that quite often, really, no more state-helpful imperative is to be discovered in fine distinctions. The church discovers in them a pastoral need for action and brings the logic of life to its naked concept: state service. Leftist 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 = “creation order” and state cohesion. They have such good reasons in store as the unity of morality and nature in which everything that does not fit church and politics shows up in the moral code: “immoral and unnatural.”

Where the relationship between force, law and morality is consistently turned upside down and the whole world discusses the basic values backwards, as the responsibility of politics towards them, the science of meaning, philosophy, is not far behind. It enthusiastically takes on the issues of debate and updates “in step with actual practice” their favorite nonsense: the justification of moral principles from the principles of morality.

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

A single call for a state ruling

Philosophers supply the last arguments, physicians the first causes, jurists the most various codes, journalists the nicest cases from life for the unanimous view that in the principles of life something is waiting to be decided which no one may take a try at individually. Higher, law making authorities are asked to donate the certainty which such a landmark decision enacts. In this respect, the public discussion about life, this platform for propagandizing a subject people's orders, is already serviceable to the political interest: for politics to stand guard over morality and obligate them to its own highest principles.

So the public ado culminates in the debate as to who is the right spiritual adviser, the one who really in the end is legitimate for this political task: the civil servants with their political responsibility or the church with its state-recognized position in the life and customs of the state. The clerics would like to really have codified their spiritual sovereignty over the rulers in questions of values, as if everything would go to hell if they personally do not watch over womb and deathbed with God's blessing. In their feigned modesty, they perceive only the right of the religious citizen to his free opinion and want to protect him against the intolerable paternalism of laicist dogma. Against it, a peculiar coalition of loud advocates of the political force monopoly hammers on the fact that the state in all its sovereignty has to prescribe the orders for a state-compliant life to its own society. So they argue methodically about the right to spiritual leadership, probably knowing that the church is and remains a power in this state, and that turned around its moral orders are committed above all to the welfare of the state.

When the constitutional president, cardinals, Christian Ministers and Social Democrats argue about their responsibilities over rights and morals, then its not only morality among thieves. Then the state's claim to the life of its citizens from the cradle up to the stretcher is really completely undisputed.