Abortion And The Right To Life - Part Ii

By Author: Sam Vaknin
Total Articles: 58
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III. Abortion and the Social Contract The issue of abortion is emotionally loaded and this often makes for poor, not thoroughly thought out arguments. The questions: Is abortion immoral and Is abortion a murder are often confused. The pregnancy (and the resulting fetus) are discussed in terms normally reserved to natural catastrophes (force majeure). At times, the embryo is compared to cancer, a thief, or an invader: after all, they are both growths, clusters of cells. The difference, of course, is that no one contracts cancer willingly (except, to some extent, smokers --but, then they gamble, not contract). When a woman engages in voluntary sex, does not use contraceptives and gets pregnant - one can say that she signed a contract with her fetus. A contract entails the demonstrated existence of a reasonably (and reasonable) free will. If the fulfillment of the obligations in a contract between individuals could be life-threatening - it is fair and safe to assume that no rational free will was involved. No reasonable person would sign or enter such a contract with another person (though most people would sign such contracts ...
... with society). Judith Jarvis Thomson argued convincingly (A Defence of Abortion) that pregnancies that are the result of forced sex (rape being a special case) or which are life threatening should or could, morally, be terminated. Using the transactional language: the contract was not entered to willingly or reasonably and, therefore, is null and void. Any actions which are intended to terminate it and to annul its consequences should be legally and morally permissible. The same goes for a contract which was entered into against the express will of one of the parties and despite all the reasonable measures that the unwilling party adopted to prevent it. If a mother uses contraceptives in a manner intended to prevent pregnancy, it is as good as saying: " I do not want to sign this contract, I am doing my reasonable best not to sign it, if it is signed - it is contrary to my express will". There is little legal (or moral) doubt that such a contract should be voided. Much more serious problems arise when we study the other party to these implicit agreements: the embryo. To start with, it lacks consciousness (in the sense that is needed for signing an enforceable and valid contract). Can a contract be valid even if one of the signatories lacks this sine qua non trait? In the absence of consciousness, there is little point in talking about free will (or rights which depend on sentience). So, is the contract not a contract at all? Does it not reflect the intentions of the parties? The answer is in the negative. The contract between a mother and her fetus is derived from the larger Social Contract. Society - through its apparatuses - stands for the embryo the same way that it represents minors, the mentally retarded, and the insane. Society steps in - and has the recognized right and moral obligation to do so - whenever the powers of the parties to a contract (implicit or explicit) are not balanced. It protects small citizens from big monopolies, the physically weak from the thug, the tiny opposition from the mighty administration, the barely surviving radio station from the claws of the devouring state mechanism. It also has the right and obligation to intervene, intercede and represent the unconscious: this is why euthanasia is absolutely forbidden without the consent of the dying person. There is not much difference between the embryo and the comatose. A typical contract states the rights of the parties. It assumes the existence of parties which are moral personhoods or morally significant persons - in other words, persons who are holders of rights and can demand from us to respect these rights. Contracts explicitly elaborate some of these rights and leaves others unmentioned because of the presumed existence of the Social Contract. The typical contract assumes that there is a social contract which applies to the parties to the contract and which is universally known and, therefore, implicitly incorporated in every contract. Thus, an explicit contract can deal with the property rights of a certain person, while neglecting to mention that person's rights to life, to free speech, to the enjoyment the fruits of his lawful property and, in general to a happy life. There is little debate that the Mother is a morally significant person and that she is a rights-holder. All born humans are and, more so, all adults above a certain age. But what about the unborn fetus? One approach is that the embryo has no rights until certain conditions are met and only upon their fulfillment is he transformed into a morally significant person ("moral agent"). Opinions differ as to what are the conditions. Rationality, or a morally meaningful and valued life are some of the oft cited criteria. The fallaciousness of this argument is easy to demonstrate: children are irrational - is this a licence to commit infanticide? A second approach says that a person has the right to life because it desires it. But then what about chronic depressives who wish to die - do we have the right to terminate their miserable lives? The good part of life (and, therefore, the differential and meaningful test) is in the experience itself - not in the desire to experience. Another variant says that a person has the right to life because once his life is terminated - his experiences cease. So, how should we judge the right to life of someone who constantly endures bad experiences (and, as a result, harbors a death wish)? Should he better be "terminated"? Having reviewed the above arguments and counter-arguments, Don Marquis goes on (in Why Abortion is Immoral, 1989) to offer a sharper and more comprehensive criterion: terminating a life is morally wrong because a person has a future filled with value and meaning, similar to ours. But the whole debate is unnecessary. There is no conflict between the rights of the mother and those of her fetus because there is never a conflict between parties to an agreement. By signing an agreement, the mother gave up some of her rights and limited the others. This is normal practice in contracts: they represent compromises, the optimization (and not the maximization) of the parties' rights and wishes. The rights of the fetus are an inseparable part of the contract which the mother signed voluntarily and reasonably. They are derived from the mother's behaviour. Getting willingly pregnant (or assuming the risk of getting pregnant by not using contraceptives reasonably) - is the behaviour which validates and ratifies a contract between her and the fetus. Many contracts are by behaviour, rather than by a signed piece of paper. Numerous contracts are verbal or behavioural. These contracts, though implicit, are as binding as any of their written, more explicit, brethren. Legally (and morally) the situation is crystal clear: the mother signed some of her rights away in this contract. Even if she regrets it - she cannot claim her rights back by annulling the contract unilaterally. No contract can be annulled this way - the consent of both parties is required. Many times we realize that we have entered a bad contract, but there is nothing much that we can do about it. These are the rules of the game. Thus the two remaining questions: (a) can this specific contract (pregnancy) be annulled and, if so (b) in which circumstances - can be easily settled using modern contract law. Yes, a contract can be annulled and voided if signed under duress, involuntarily, by incompetent persons (e.g., the insane), or if one of the parties made a reasonable and full scale attempt to prevent its signature, thus expressing its clear will not to sign the contract. It is also terminated or voided if it would be unreasonable to expect one of the parties to see it through. Rape, contraception failure, life threatening situations are all such cases. This could be argued against by saying that, in the case of economic hardship, f or instance, the damage to the mother's future is certain. True, her value- filled, meaningful future is granted - but so is the detrimental effect that the fetus will have on it, once born. This certainty cannot be balanced by the UNCERTAIN value-filled future life of the embryo. Always, preferring an uncertain good to a certain evil is morally wrong. But surely this is a quantitative matter - not a qualitative one. Certain, limited aspects of the rest of the mother's life will be adversely effected (and can be ameliorated by society's helping hand and intervention) if she does have the baby. The decision not to have it is both qualitatively and qualitatively different. It is to deprive the unborn of all the aspects of all his future life - in which he might well have experienced happiness, values, and meaning. The questions whether the fetus is a Being or a growth of cells, conscious in any manner, or utterly unconscious, able to value his life and to want them - are all but irrelevant. He has the potential to lead a happy, meaningful, value-filled life, similar to ours, very much as a one minute old baby does. The contract between him and his mother is a service provision contract. She provides him with goods and services that he requires in order to materialize his potential. It sounds very much like many other human contracts. And this contract continue well after pregnancy has ended and birth given. Consider education: children do not appreciate its importance or value its potential - still, it is enforced upon them because we, who are capable of those feats, want them to have the tools that they will need in order to develop their potential. In this and many other respects, the human pregnancy continues well into the fourth year of life (physiologically it continues in to the second year of life - see "Born Alien"). Should the location of the pregnancy (in uterus, in vivo) determine its future? If a mother has the right to abort at will, why should the mother be denied her right to terminate the " pregnancy" AFTER the fetus emerges and the pregnancy continues OUTSIDE her womb? Even after birth, the woman's body is the main source of food to the baby and, in any case, she has to endure physical hardship to raise the child. Why not extend the woman's ownership of her body and right to it further in time and space to the post-natal period? Contracts to provide goods and services (always at a personal cost to the provider) are the commonest of contracts. We open a business. We sell a software application, we publish a book - we engage in helping others to materialize their potential. We should always do so willingly and reasonably - otherwise the contracts that we sign will be null and void. But to deny anyone his capacity to materialize his potential and the goods and services that he needs to do so - after a valid contract was entered into - is immoral. To refuse to provide a service or to condition it provision (Mother: " I will provide the goods and services that I agreed to provide to this fetus under this contract only if and when I benefit from such provision") is a violation of the contract and should be penalized. Admittedly, at times we have a right to choose to do the immoral (because it has not been codified as illegal) - but that does not turn it into moral. Still, not every immoral act involving the termination of life can be classified as murder. Phenomenology is deceiving: the acts look the same (cessation of life functions, the prevention of a future). But murder is the intentional termination of the life of a human who possesses, at the moment of death, a consciousness (and, in most cases, a free will, especially the will not to die). Abortion is the intentional termination of a life which has the potential to develop into a person with consciousness and free will. Philosophically, no identity can be established between potential and actuality. The destruction of paints and cloth is not tantamount (not to say identical) to the destruction of a painting by Van Gogh, made up of these very elements. Paints and cloth are converted to a painting through the intermediacy and agency of the Painter. A cluster of cells a human makes only through the agency of Nature. Surely, the destruction of the painting materials constitutes an offence against the Painter. In the same way, the destruction of the fetus constitutes an offence against Nature. But there is no denying that in both cases, no finished product was eliminated. Naturally, this becomes less and less so (the severity of the terminating act increases) as the process of creation advances. Classifying an abortion as murder poses numerous and insurmountable philosophical problems. (continued) Sam Vaknin is the author of Malignant Self Love - Narcissism Revisited and After the Rain - How the West Lost the East. He is a columnist for Central Europe Review, United Press International (UPI) and eBookWeb and the editor of mental health and Central East Europe categories in The Open Directory, Suite101 and searcheurope.com. Visit Sam's Web site at http://samvak.tripod.com