In most cases in the United States the issue of whether or not an infant is a person does not arise. Whether or not the neo-nate is a person, s/he is treated like a person from the moment of birth, usually by the parent(s), by the doctors, nurses, and hospital staff, and by society. Any infant born into the United States is a citizen, and entitled to the legal rights of a legal person. We assume this tracks the moral rights of a moral person, and generally, there is no reason to question whether this is so. If the parents do not wish to care for a normal, healthy infant, other adults can readily be located who very much want to do so.

Thus, the issue of whether an infant is a person arises most frequently before birth, and in cases where the infant is severely handicapped. We are all very familiar with the debates over personhood of the fetus. Some argue that it begins at the moment of conception, as the soul joins the single-cell, or so the theory goes. Most argue that it happens at some point later in development, either somewhere in the 20 to 26 week of gestation range (e.g. because of brain development), or at the moment of birth. Still others will argue that the fetus, at birth, is really not terribly different from the fetus before birth, in terms of characteristics by virtue of which it might be declared a person. In that case, the neo-nate is also not a person.

WHY CARE ABOUT NEO-NATAL PERSONHOOD:

At this point, one might wonder why there is this concern about whether or not the neo-nate is a person. The issue of personhood is a meta-ethical consideration. The principle of respect for persons in Kantian ethics requires that we first be able to identify and distinguish persons and nonpersons before it can be properly applied. Likewise, since persons are the beings who have interests, the Interest Utilitarian will be concerned with identifying persons in order to identify those whose interests exist, and thus must be taken into account. Finally, all rights theories are theories of the basic rights that should be accorded to persons. Therefore, the issue of personhood is integral to understanding and applying several types of ethical theories, although it is not itself either an ethical theory or an ethical issue.

The Kantian Categorical Imperative requires that we treat persons as ends in themselves, never as means only. Traditionally, Kantian persons are essentially rational and free, that is not bound by instinct or compulsion. If the criteria for personhood are rationality and freedom, then clearly infants are not persons, and neither are some adults. Depending on how radically this freedom is defined, some might argue that no one is a person in this sense.

Other criteria for personhood have included sentience (ability to feel pleasure and pain), consciousness, and self-awareness. Michael Tooley, an interest utilitarian philosopher, argues that the infant gains self-awareness at approximately 3 months after birth. Therefore, a normal neo-nate is not yet a person, and does not yet have interests and rights to respect, for example. In cases where the baby's continued life is in question, the interests of the parents and of society should be taken into account, but not those of the infant (since the infant has none).

After abortion questions, the issue of neo-natal personhood arises mostly in cases where the neo-nate is severely disabled. So, we turn ourselves to the question of whether a neo-nate who is born without the capacity to grow into a person in the fullest sense of the term should be given the same life-saving treatments as an infant who is born with a normal neurological development and will, in time, become a person in the full sense. If this infant is not entitled to the same extraordinary measures, then should the infant be helped to die earlier? If this infant is not entitled to the same extraordinary measures, then should the infant be considered for organ donations, with the consent of the family, at the point where it is decided that the infant, not being a person, may ethically be used as a means?

POTENTIAL PERSONS, SOCIAL PERSONS, AND FUTURE RIGHTS:
At full gestation, the normal neo-nate is a person in the sense that s/he is conscious, in the sense that s/he is sentient, and in the sense that s/he plays a role in the society. Socially and legally, the normal, human infant is a person. However, Tooley (and Singer) are correct in claiming that the infant at this stage does not yet have self-awareness, and therefore, is not yet a person with interests. Generally, the potential personhood of the infant is also taken into account in these cases. After birth, the normal infant should have his rights held in trust for him, because, given the normal course of things, s/he will become a person shortly, and will have those rights. When the being in question is going to be a person, we think it is wrong to choose for him or her in ways that will severely limit his future. If, for example, my baby is born female and I wanted the baby to be male, it would be wrong for me to reassign the sex of my baby at birth on the grounds that s/he is not yet a person and does not yet have an interest in being one sex or the other. If that baby will be a person in the future, it would be contrary to the interests s/he is likely to have to have the choice of sex reassignment made for him/her in advance. However, the questions that arise in the case of a child who is not born with normal neurological development are many:

• If the child is not even a future person, is it permissible to use the child's organs for transplant?
• If the child is not even a future person, is it permissible to fail to use extraordinary means to prolong life?
• If the child is not even a future person, is it permissible to hasten the brain or cardio-pulmonary death of the child?
• If the child is a future person, is it sometimes morally required that one refrain from using extraordinary means to prolong life if continued life is not in the child's best interests?
• If the child is a future person, is it sometimes morally required that one hasten the brain or cardio-pulmonary death of the child to respect the child's interest in not being subjected to future suffering?

SOME NEO-NATAL ABNORMALITIES AND ETHICAL ISSUES:
The most common, clear-cut, yet controversial, cases in which these issues arise are cases where the baby is Anencephalic. In about one in every thousand to one in every two thousand live births, the neo-nate will be anencephalic (the incidence is higher in the US, lower in Asia and Africa). Causes are unknown, although anencephaly seems to be correlated with low intake of folic acid, and more recent studies seem to show a correlation with environmental pollution. This defect occurs in the embryo prior to the 26th day of gestation, and results in absence of the cerebellum and both cerebral hemispheres, leaving only a rudimentary brain-stem consisting of portions of connective tissue, vessels, and neuroglia. The cranium is absent, and the head is covered with a thin layer of tissue, thus it is immediately apparent that the baby is anencephalic at birth. The incidence has decreased due to better nutrition and better pre-natal detection, leading to termination of pregnancy. However, some women do choose to bring the baby to term, in full knowledge that the baby is anencephalic.

Anencephaly is a condition which is termed "incompatible with life." Although the rudimentary brain stem can support breathing and heartbeat for a period of a few hours to a few days, and, in rare cases, a few weeks, the condition is always fatal. The anencephalic neo-nate is not capable of consciousness or sentience, as those clearly rest in areas of the brain that are absent. The baby has neither current nor future interests.

The Baby K case of 1992 lies at one extreme of this dilemma. Baby K's mother insisted on aggressive treatment and resuscitation of her anencephalic infant. When Baby K had the final heart attack in 1995, she was 2.5 years old, and over $500,000 had been spent on her care. Baby K's mother insisted that her Christian ethics drove her to seek aggressive treatment of her anencephalic infant, insisting that the hospital continually defribrillate and intubate to restore cardio-pulmonary functions. In 1998, the National Conference of Catholic Bishops' Committee on Doctrine issued this statement entitled "Moral Principles Concerning Infants with Anencephaly" in which Catholic Natural Law Theory is applied to conclude that though the organs may not be taken until the baby is braindead and the pregnancy may not be terminated, extraordinary means to prolong life need not be taken. However, ". . . this life has equal dignity and right with any other life."

On the other side of this debate, there are those who would like for an exception to the whole brain criteria for death to be made for anencephalic infants. Anencephalic infants are not even former persons or possible future persons, and the diagnosis is clear and uncontroversial. To be able to use such baby's for organ donation would be a boon to the many babies and young children who are on the list of potential recipients. The distinction between anencephalic babies and babies with other serious disorders and diseases is made at the outset, as these babies are not normally offered more than "comfort care." They are kept warm and fed, but not kept alive on ventilators or offered life-extending surgeries for any other abnormalities they might have. In 1994 the American Medical Association Council on Ethical and Judicial Affairs declared that it would be permissible to make an exception for such infants if the anencephaly was diagnosed by at least two physicians who were not part of the transplant team, and if the parents initiated talk of organ donation and signed a document to this effect. Protocols were developed at Loma Linda Hospital to allow organ donation from anencephalic infants prior to a diagnosis of brain death.

However, more recent sentiment within the medical profession seems to have turned against this decision. The American Pediatric Association's Committee on Bioethics and the Canadian Medical Association are more concerned about a slippery slope between anencephalic infants and other potential organ donors who lack consciousness. They also worry about erosion of care for infants in general, as well as shifting valuable resources, such as ventilators, away from future persons in the NICU (Neo-Natal Intensive Care Unit) to anencephalic baby's who are potential organ donors. Other than the brain, the anencephalic baby's organs are generally not affected by the disorder. However, because even the brainstem is rudimentary in an anencephalic baby, the few days or weeks which pass until the baby meets the criteria for brain death will usually deteriorate these organs to the point of becoming unusable for transplants, as the organs have generally not been oxygenated sufficiently. In order for anencephalic babies to be organ donors, the organs would either need to be taken soon after birth (which violates the prohibition on declaring brain death before an infant is 7 days old), or the infant must be put on a ventilator to oxygenate the organs until a recipient can be found and prepared.

The other question regarding anencephalic babies involves the extent to which it is proper to keep this baby alive. The term "comfort care" in this case is misleading. As the anencephalic lacks the brain structures necessary for consciousness and sentience s/he is neither comfortable nor uncomfortable. There can be no question about whether the baby "would have wanted to live like this," because the anencephalic baby never has been and never will be capable of having desires, preferences or interests, nor even of being aware that s/he "is" like this. Since the condition is incompatible with life, doctors will perform even very late-term abortions (even in the 8th month) for mothers of anencephalic fetuses, and they will not prolong life, unless required by the parents to do so (as in the case of Baby K).

Other conditions that are considered "incompatible with life" are Trisomy 18 and Trisomy 13. Due to the presence of a 3rd chromosome 18 or a third chromosome 13, these neo-nates come into the world with profound physical abnormalities, including severe retardation, limb and organ deformities, and generally lacking the abilities to see, hear, or smell. The trisomy 18 baby has only a 10% chance of living past the first year, while the trisomy 13 baby has a 28% chance of doing so. Some trisomy 18 babies have lived to be teenagers. All have profound deficits. These syndromes occur more rarely than does either anencephaly or Down Syndrome (trisomy 21), but they are not rare.

Since the organs of a Trisomy 18 or Trisomy 13 neo-nate are not suitable for transplant, the very low chance that these neo-nates will ever reach consciousness is often ignored. However, it is possible that one of these babies might be a future person, in the sense of gaining some consciousness and/or the ability to feel pleasure and pain. In such a case, the argument might go as follows. First, the chances that the baby will live to the point where s/he could be a person are very low, so in most cases the interests of the parents should be the guiding factor. If it is in the parents' interests not to take extraordinary means to extend the baby's life, then this should be done, for example. On the other hand, if this is one of the rare trisomy 18 or trisomy 13 cases in which the neo-nate could or will gain some rudimentary consciousness, or even has some at the time of birth, then the best interests standard could be a guide. It might be in this infant's best interests to receive "comfort care," in the rare instance in which there could be comfort, but it might not be in the infant's best interest to receive operations, artificial ventilation, and other care that would either extend the biological life of a non-person or extend the suffering of a marginally conscious being who will never be capable of making his or her life more pleasure than pain.

Down Syndrome (Trisomy 21) and Spina Bifida are two conditions of the neo-nate that, although serious, are considered "compatible with life." In Down Syndrome the neo-nate will very likely suffer from moderate mental retardation, but life span and prognosis are more likely to be affected by other aspects of the syndrome, including heart abnormalities and an increased risk of acute leukemia. Many individuals with Down Syndrome lead happy lives and live to be over 55 years of age.

However, gastrointestinal disorders are common in babies with Down Syndrome, either duodenal atresia (a closed off duodenum) or esophageal atresia (a closed off or incomplete esophagus). Either of these surgeries has a good chance of success. In an infant without Down Syndrome, these conditions would immediately prompt the doctor to perform the appropriate surgery. In the case of a neo-nate with Down Syndrome, however, the doctors sometimes look to the parents to decide whether the fatal blockage of the digestive tract should be corrected. If it is not corrected, the baby will die of natural causes, but not of Down Syndrome. In 1982 this choice was made according to the wishes of the parents in the case of Baby Doe. Thus ensued a four-year battle between the US government and hospitals about what sort of treatment of severely impaired infants may be required in the face of parental objections. The government accused hospitals of discriminating against handicapped infants. The supreme court, in 1986, found that there was no evidence that hospitals had discriminated or had refused treatment sought by parents.

The Supreme Court ruling brings out an interesting issue involving the right to privacy. The right to privacy is not, as many have assumed, a right to be left alone in the literal sense. The law establishes a "zone of privacy" in the affairs of the individual in which the government has no right to interfere with decisions. This zone of privacy is initially established in Mill's On Liberty, and includes decisions about refusal of treatment covered under both the right to bodily autonomy and the right to make decisions for one's children. Since parents have the right to refuse treatment on their children's behalf because they judge that treatment to be contrary to the best interest of the child, then couldn't they also make this judgement in cases like Baby Doe's where the parents have refused the right to have life-prolonging surgical care for this newborn with Down Syndrome? Jehovah's witness parents are not required to allow blood transfusions. Christian Science parents are not required to allow surgeries of any sort. Parents who mistrust certain (or all) vaccinations are not required to allow their children to be vaccinated. So, why should these parents be required to have their child undergo surgery? Does the zone of privacy that protects homeschooling parents and parents who eschew vaccinations also protect the parents of a severely disabled child who believe that it is in that child's best interests not to become persons? To use a somewhat more controversial example, the American Academy of Pediatrics has long declared that routine circumcision of the male newborn is unnecessary. However, some 50% of boys born in the U.S. are circumcised at the request of their parents. Should the American Academy of Pediatrics be permitted to prevent parents from making this decision, or is the parents' right to circumcise covered by their right to privacy?

Spina Bifida is an even more controversial case than any of the previously mentioned diseases and disorders, because there is such radical variation in prognosis. The infant with Myelomeningocelespina bifida, where both the spinal cord and its coverings are out of position, is more likely to suffer from paralysis and retardation. The spinal cord requires surgical closing, and this, too, provides an opportunity for parental choice to play a role. The infant whose spinal cord is not surgically closed will nearly always die in the immediate future from infections in the spinal cord. The infant who receives the surgery will probably grow to be a person in the sense of having consciousness, some rationality, and the ability to feel pleasure and pain. Is it the duty of these parents to establish whether or not the infant's best interests are served by having his/her spinal cord closed, or by having other surgeries that might be necessary to continued life.

CONCLUSION: Here I have outlined only a few of the conditions of the neo-nate that necessitate decisions about its moral status. If the neo-nate is a person because it is conscious and sentient, then anencephalic neonates or those with trisomy 18 and 13, should probably not be considered persons, but those with Down Syndrome and Spina Bifida should normally be considered persons. If the neo-nate is not yet a person because s/he lacks self-awareness and rationality, then we must look at the value of potential personhood, future personhood, social personhood, and coherence in our attitudes towards the bodies that are continuous with the body of a person. Somethings that are not moral agents, because they are not rational or capable of free choice, are still capable of having some interests, and thus may be moral subjects. So, though an infant in these categories may not have full moral rights (e.g. may lack a fundamental right to continued life) s/he may still have the right not to be caused unnecessary pain and suffering. If the infant is a potential, future person, then the concept of future interests arises. Should the infants best-interests in the future play a part in how we are permitted to treat him or her in the present? Finally, there are questions that arise about the limits of parental rights and the right to privacy of the family. Are decisions that could reasonably said to be in the best interests of the child best left to the parents? Here I have attempted merely to raise these issues, not to resolve them.

For a paper that discusses many of these issues, along with issues of human death and the beginnings of human life, read paper in which the author argues that personhood requires consciousness. His conclusion is that the infant with anencephaly, the adult in a Persistent Vegetative State, and the fetus prior to 20 weeks gestation (at which point synapses begin to develop) is not a person.