Rights of the Very Young

Email Print
FacebookTwitterShare

I addressed a living child’s rights, not abortion. However, my analysis applies to pre-birth cases that are not rape. Rape requires separate consideration. In non-rape cases, a woman consents to be obligated to care for a child in my theory. I have since found two more analyses that are similar to mine. Walter’s position has been rebutted already by the Bionic Mosquito, here. I had not read the latter when I devised my own position here. The other person with a similar position on the care obligation of a living child is Roderick Long who writes “The answer lies in the fact that the mother in (3) gave birth voluntarily. In doing so, I suggest, she undertook an obligation not to abandon the child. Why so? And why is this obligation enforceable?” His (3) says “(3) A woman who voluntarily bears a child but later changes her mind does not have the right simply to abandon her child, but must care for it until she can arrange for a substitute caretaker.” However, Long goes through a long analysis and also reaches a conclusion on abortion that is incompatible with my analysis and Bionic Mosquito’s analysis. Long says: “A woman who voluntarily becomes pregnant but later changes her mind has the right to abort her unborn child.” Bionic and I say that this case is no different from that of the already born child as long as the woman chose to have intercourse. I won’t analyze Long’s analysis on this part of his case because, contrary to Block, Long assumes that the fetus is not a person.

Where does Walter start, after assuming that a fetus is a person? I quote

“Given this, how can we defend the mother’s right to klll the fetus? Simple. She owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite.”

This is Rothbard’s framework too although Rothbard, contrary to Block, also came to the conclusion that a woman had no obligation to care for a living child. Walter’s evictionism theory has, I would hope, replaced that idea with the conclusion that the mother has no right to allow a child to die. On the other hand, evictionism retains the idea that an “unwanted” fetus is a parasite, even when the prospective mother had voluntary sexual relations.

I would not use the term “parasite”. This already gets the analysis off on the wrong foot. The growing baby depends on the mother, to be sure, but it has been invited or brought into being by a willing act of the mother (leaving the case of rape until later). This means that she brought into being the possibility of pregnancy, from which mothers ordinarily feel net benefits. The term parasite doesn’t apply to a woman who gets pregnant after willingly having intercourse.

But the central matter here is in this word: unwanted.

When is the fetus unwanted? Before intercourse or after? I maintain that the mother undertakes and consents to a possible obligation when she willingly has sexual relations that might produce a fetus and eventually a baby. Voluntary intercourse entails that a possible fetus is not unwanted. There is no trespass. The fetus doesn’t enter the womb; the sperm does. The woman invited that sperm to enter and allowed it. There is simply no trespass. Rothbard’s and Block’s notion of trespass is fallacious and fails in this case.

If the woman changes her mind after becoming pregnant, she has no right to kill a human being inside her. She consented to an obligation when she chose to have relations that may have produced a pregnancy. She can’t back out of it, and she especially can’t back out of it by killing someone (her fetus). As Long writes, this is like an airplane pilot parachuting out of the plane and killing the passengers.

If a woman is raped, then there is a trespass on the part of the rapist. Now the woman may find herself carrying an unwanted fetus. Now the case for aborting becomes, if not unassailable, much more difficult to judge. I still would not call a growing baby a parasite because it makes it sound as if the fetus is bad. One ordinarily has a right to rid one’s body of parasites that bring diseases, and they can be downright awful. The fetus, if a human being, is innocent. It’s not a disease carrier or causer. It did not intrude itself into the womb. The term parasite resolves nothing.

In analyzing the case of a living child, I had no intent to get into this difficult case of rape, followed by an unwanted pregnancy, because it seems to be impossible to decide. After all, the woman has a right, it would seem, to abort in this case such as by taking a morning after pill, but the fetus or fertilized egg is also innocent.

To digress a bit, the woman has a right to remove one egg from her body each menstrual cycle. May she take a morning after pill, after a rape, not knowing whether or not that egg has been fertilized? I think the answer depends on whether or not a possibly fertilized egg is a human being. What if technology could determine if it has been fertilized? The answer still depends on the human being status of the fertilized egg. If it is not a human being yet, then it’s like having an ordinary menstrual cycle. What if the fertilized egg could be removed and nurtured to birth? This widens the range of choices, but the issue remains the same. Is a fertilized egg a human being or not?

If it’s maintained that a fertilized egg is a person, then this case becomes difficult to decide on the grounds of rights because a person in the womb has a right to live but the potential mother didn’t invite that person to be there. What is justice in this case? I don’t think killing the person in the womb is just. I don’t think the woman has a right to kill that person inside her, even if it’s trespassing. We do not ordinarily kill trespassers. I think the woman should be compensated by the rapist for the values she has lost by assuming an unwanted pregnancy. Forced compensation by the rapist is my answer to this one. But I really didn’t want to get into this issue and still don’t.

My analysis drew upon that of Richard D. Fuerle, and I’ll go back to what he wrote because he resolves the issue on the grounds of defining a person (or human being) as having free will:

“The first man and woman ever to be born with free will claimed their bodies and acquired rights to their bodies because there was no argument, let alone a valid argument, against their claims. A man abandoned his sperm in that first woman. It fertilized her egg and she continued her ownership of that egg. That fertilized egg grew into a fetus using food that belonged to that woman and therefore the fetus made from the food belonged to her. Now, at some point, that fetus will acquire free will, but until it does it is not capable of acquiring rights and can be destroyed by the woman. When it acquires free will is a question of fact, but let’s suppose that it acquires free will before it is born. The woman still sends her nutrients to it through her umbilical cord, she still controls its overall position relative to her body, she still controls contact with its body, and she does not abandon those rights. But when an entity having free will arises within the fetus, that entity moves the body in which it resides to achieve some value, even just the pleasure of moving a finger, and it acquires a right to use its body to achieve that and other values, subject, as with all rights, to the pre-existing rights of others, in this case, those of its mother.”

When does free will arise? If free will defines or is central to what a human being is, when does a human being arise in the womb? Free will may not be a satisfactory way to resolve the issue. But it is a possible way. Another possible way is when the fetus begins to feel sensations.

I have no analytical answer, based on Fuerle’s ideas, to the problem of an unwanted fertilization arising from rape because I have no answer to when a human being arises in the womb. On the other hand, I provided my answer nonetheless on the assumption that a fertilized egg is a human being. It’s that there is no right to abort, either before the fetus can live outside the womb by technical means or after. If the woman voluntarily had sex, she has given up that abortion possibility; she has assumed an obligation not only not to abort but to care for the child. After it is born, she cannot simply abandon it without committing a crime. If she was raped, she still has no right to abort, but she does have a claim for compensation from the rapist.

If we relax the assumption that a fertilized egg is a human being, then the woman does for a period of time have the right to abort or to take a morning after pill and end a pregnancy or a possible pregnancy. That period of time lasts until the fertilized egg becomes a human being. When is that? I do not know. If Fuerle’s concept is right that having free will is the defining moment, I still do not know because I don’t know when that moment occurs, and it might vary among fetuses.

7:58 am on May 2, 2014