When a “Heartbeat” Is Not a Heartbeat

The merging of a sperm cell with the female egg marks human conception. The resultant single cell, called a zygote, contains the genetic information of a new individual. However, approximately three out of four zygotes die because of genetic defects and environmental factors.¹

Source: Armin Zadeh

Some zygotes develop into a newborn baby, who, at the time of (live) birth, is considered a human being. However, there is no consensus on whether a cell, an embryo, or a fetus prior to birth may be considered a human or person.

Texas introduced a new law in 2021 which prohibits abortions after a fetal “heartbeat” can be detected. The bill implies that the beginning of human life or personhood is linked to the development of the human heart. Pulsations of blood flow can be seen by ultrasonography from the sixth gestational week on. Accordingly, the law bans abortions beyond the sixth week of pregnancy.

Pregnancy is uncommonly suspected until the menstrual bleeding is missed, which is about four to five weeks after the previous period. Indeed, the average time of pregnancy awareness among U.S. women is 5.5 weeks—though later 6.6 weeks among women 19 years or younger.² Thus, most women do not have a legal option in the state of Texas for deciding whether or not to complete their pregnancy by the time they recognize it.

From a technical standpoint, one may challenge the notion that a heartbeat can be detected during the sixth gestational week. The heart does not complete its structural development until the ninth week.³

At week six, the tissue which is generating regular pulsation consists of a poorly differentiated muscle tube. It does not exhibit the appearance or characteristics of a human heart. For example, the heart chambers and valves have not developed at this stage, nor have the typical heart shape.

Do we consider a pulsating tube to be a heart? Many would disagree. More recent data even point to evidence that the heart does not resume its organized function until the twentieth gestational week.⁴

Source: Armin Zadeh

If therefore, the criterion for human life or personhood indeed is the completed development of the human heart, the line should be drawn at the ninth gestational week—at the earliest.

Given the short window of potential deliberation allowed by the Texan law, correcting the period of legal abortion until the ninth week of pregnancy has substantial implications.

Three additional weeks would allow most women to recognize their pregnancy within the time period of legal abortion and to decide for or against premature termination. Of course, if the Texas legislature chose the sixth-week mark to limit the opportunity for abortion, it may have no interest in changing the law.

The larger question in this context is if the detection of a heartbeat is an adequate criterion for the beginning of human life or personhood. More importantly: Can there be a universal criterion for the beginning of human life or personhood? After all, the perception of human origin is a personal view, which is strongly guided by religious, spiritual, and philosophical positions. Not coincidentally do, religions strongly weigh into this discussion.

The Catholic Church views conception as the beginning of human life. Catholic scholars consider the zygote to be a person with all associated privileges. However, the position of the Catholic Church evolved with earlier writings regarding an embryo as a person only after ensoulment, which occurred at least 40 days after.

Other Christian denominations and religions have different views on the time of ensoulment and personhood. Islam marks ensoulment 120 days after conception. Judaism generally does not regard any prenatal stage as a person.

Interestingly, the development of the human heart plays no role in any religious reasoning for the beginning of human life. Embryonic development stages have been the focus of secular positions for attempts to define the beginning of human life. Various developmental landmarks have been suggested as evidence of a human being, e.g., multi-cellular embryonic state, human resemblance, brain development, or viability outside the woman’s body.

From a legal standpoint, it matters tremendously when we consider human life to be present. Most of the ethical and legal implications of defining human life relate to our definition of a person who holds rights in a community or society.

This is clearly the case for a woman carrying a fetus and a (live) born baby. If an embryo or a fetus cannot be considered a person, it is difficult to perceive how it can infringe on the mother’s constitutional rights as a person.

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The U.S. Supreme Court rejected the notion in Roe vs. Wade that a fetus should be considered a person with a legal and constitutional right to life. The court acknowledged that it is not in a position to determine the beginning of human life when no consensus can be reached among scholars in medicine, theology, and philosophy.

The critical conclusion from many years of challenges and debates on this issue is that a consensus on when a human being/person begins to exist cannot be reached.

Everybody’s view on the beginning of human life is deeply intertwined with personal ideas of life, God or a higher power, and purpose.

Religious beliefs are protected under the First Amendment of the U.S. Constitution and thus should not be imposed on others. By the same token, a person’s view on the beginning of human life and personhood should be respected. Based on her religious, spiritual, or other views, a pregnant woman arrives at an individual conclusion if and at what point her cell, embryo, or fetus is a person or not.

Source: Armin Zadeh

Considering a cell, an embryo, or a fetus to be a person implies that forcing its demise is equivalent to murder.

More than 40 million abortions are performed each year worldwide. Even when legal, we must assume that most, if not all, women seeking an abortion would find it morally prohibitive to murder another person.

Therefore, they must not consider their respective cell, embryo, or fetus to be a person.

The Texas law conflicts with a person’s right to religious freedom by imposing and enforcing its view on whether an embryo should be considered a person or not. Furthermore, requiring a woman to carry out a pregnancy against her will conflicts with her right of liberty under the 14th Amendment of the US Constitution.

Conservative scholars have argued that the potentiality of human life is sufficient to prohibit abortion.⁵ The Supreme Court claimed interest in the potentiality of human life on behalf of the unborn life. However, the critical point is that such potentiality may not exist for a given person and that such a personal view on personhood—commonly informed by religious or spiritual beliefs—is protected under the U.S. Constitution. As such, the uncertainty as to when human life begins may exist for the State—but may not for the individual person.

The view on the beginning of human life is deeply personal, and consensus on the status of a fetus’ personhood is as likely as everyone agreeing on one god. However, without consensus on the beginning of personhood, civil rights cannot be granted. Therefore, the question of abortion restriction is not one of constitutional law interpretation but one of ideology.