I should mention that this topic of abortion only came up tangentially when I defended libertarianism from the charge that it abrogated the rights of children, the specific charge having been “the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death…” The NAP contains no such implication. To the contrary, allowing your 3-year old son to starve would violate the NAP. I referred to Walter Block’s view on this in passing and that has led to an elucidation and extension of my views.

Walter raised several objections to my elaboration regarding child’s rights and brought in the abortion issue, which even less had I any intention of commenting upon. His comments were

“First, what about the fetus-child who is the product of rape? Certainly, there was no consent to sexual intercourse in this case. Yet, all children are equally innocent, and have equal rights not to be aggressed against. Second, for there to be a true obligation, as in the case of the airine pilot, there must be a contract, even an implicit one. But, for there to be legitimate contract, there must be two parties to it. At the time of sexual intercourse, one of the parties, the child was missing; did not exist at all.”

I answered the first in detail here. I agree that all fetus-children, as Walter calls them, are innocent and therefore none should be aggressed against. I distinguish in detail between the rape case and voluntary intercourse. Although Walter and I agree on this premise, disagreement arises at a later stage of the analysis.

I didn’t address his second case in which he says an obligation requires a contract or an implicit one. I don’t agree that an obligation requires a contract. An obligation has a looser meaning than contractual, which is a legal term. An obligation means a responsibility or a moral duty or a commitment. One is bound by it as to a debt, without there being a contract, the latter entailing a legal system and an agreement.

Suppose we do go the route of analyzing this in contractual terms. A contractual agreement would seem to require two parties, but there is such a thing, if we do choose to think of the mother-fetus relationship as a contractual matter, as a unilateral contract.

I don’t find this analytical and legal road very fruitful, but it might be possible to gain some traction with it in deciding the issue of rights.

“A contract in which only one party makes an express promise, or undertakes a performance without first securing a reciprocal agreement from the other party.

“In a unilateral, or one-sided, contract, one party, known as the offeror, makes a promise in exchange for an act (or abstention from acting) by another party, known as the offeree. If the offeree acts on the offeror’s promise, the offeror is legally obligated to fulfill the contract, but an offeree cannot be forced to act (or not act), because no return promise has been made to the offeror. After an offeree has performed, only one enforceable promise exists, that of the offeror.”

The potential mother’s “promise” is to carry the fetus to term if the offeree (the fertilized egg) comes into existence.

This analytical apparatus seems pretty far-fetched to me. It still doesn’t address the question of when a fetus is a human being. Let me go in a different and more direct direction. Whenever a fetus is a human being, the pregnant woman has no right to kill that human being unless, to bring up another difficult case that I cannot analyze, the fetus is endangering her life. (In the latter case, my opinion is that a woman has no obligation to die in order to save an unborn child. I cannot imagine that her obligation extends that far. Deaths of mothers in child birth is a bad enough tragedy. And beyond that she may be able to go on and have more children.)

Can a woman make a promise to an unborn child? Yes, of course. Does she do so when she has intercourse that might bring a child into being? That’s the critical issue in my theory, not in contract but in moral terms. Does she undertake a responsibility or an obligation? Does she bind herself? Does the man also bind himself to care for a possible child? I think they do because they are responsible for creating a human life, knowing that they have no right to take it. Why not? Why don’t they have that right when they created it and the baby is inside one of them who has self-ownership? It’s because the baby is a separate and individual person, no matter who created it or where it’s now located. The creators do not own the baby as property that they can decide to dispose of by killing. The baby is not chattel, like a slave or an object. The notion that the baby or fetus is the property of its creators is fundamentally mistaken. The parents have certain rights over the baby and as against other claimants, but the power of life and death is not one of them. The baby, for its part, has limited rights, to be sure, and it can’t enforce certain critical rights, like its right to live, but it or a fetus that is a human being still has self-ownership, if we use property language. How do we know this? If it could speak and move freely as it already moves partially, it would be giving us concrete signs of its free will and simultaneously its will to live. The baby’s will to live and its very growth are giving us concrete signs of its right to live.

The Best of Michael S. Rozeff