Abortion and the Right to Life
By Sam Vaknin
Author of "Malignant Self Love - Narcissism Revisited"

Abortion and the Social Contract

See the Appendix - Arguments from the Right to Life

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.

No one disputes the now common view that the main crime committed in
aborting a pregnancy - is a crime against potentialities. If so, what is the
philosophical difference between aborting a fetus and destroying a sperm and
an egg? These two contain all the information (=all the potential) and their
destruction is philosophically no less grave than the destruction of a
fetus. The destruction of an egg and a sperm is even more serious
philosophically: the creation of a fetus limits the set of all potentials
embedded in the genetic material to the one fetus created. The egg and sperm
can be compared to the famous wave function (state vector) in quantum
mechanics - the represent millions of potential final states (=millions of
potential embryos and lives). The fetus is the collapse of the wave
function: it represents a much more limited set of potentials. If killing an
embryo is murder because of the elimination of potentials - how should we
consider the intentional elimination of many more potentials through
masturbation and contraception?

The argument that it is difficult to say which sperm cell will impregnate
the egg is not serious. Biologically, it does not matter - they all carry
the same genetic content. Moreover, would this counter-argument still hold
if, in future, we were be able to identify the chosen one and eliminate only
it? In many religions (Catholicism) contraception is murder. In Judaism,
masturbation is "the corruption of the seed" and such a serious offence that
it is punishable by the strongest religious penalty: eternal
ex-communication ("Karet").

If abortion is indeed murder how should we resolve the following moral
dilemmas and questions (some of them patently absurd):

Is a natural abortion the equivalent of manslaughter (through negligence)?

Do habits like smoking, drug addiction, vegetarianism - infringe upon the
right to life of the embryo? Do they constitute a violation of the contract?

Reductio ad absurdum: if, in the far future, research will unequivocally
prove that listening to a certain kind of music or entertaining certain
thoughts seriously hampers the embryonic development - should we apply
censorship to the Mother?

Should force majeure clauses be introduced to the Mother-Embryo pregnancy
contract? Will they give the mother the right to cancel the contract? Will
the embryo have a right to terminate the contract? Should the asymmetry
persist: the Mother will have no right to terminate - but the embryo will,
or vice versa?

Being a rights holder, can the embryo (=the State) litigate against his
Mother or Third Parties (the doctor that aborted him, someone who hit his
mother and brought about a natural abortion) even after he died?

Should anyone who knows about an abortion be considered an accomplice to
murder?

If abortion is murder - why punish it so mildly? Why is there a debate
regarding this question? "Thou shalt not kill" is a natural law, it appears
in virtually every legal system. It is easily and immediately identifiable.
The fact that abortion does not "enjoy" the same legal and moral treatment
says a lot.

Appendix - Arguments from the Right to Life

I. The Right to Life

It is a fundamental principle of most moral theories that all human beings
have a right to life. The existence of a right implies obligations or duties
of third parties towards the right-holder. One has a right AGAINST other
people. The fact that one possesses a certain right - prescribes to others
certain obligatory behaviours and proscribes certain acts or omissions. This
Janus-like nature of rights and duties as two sides of the same ethical
coin - creates great confusion. People often and easily confuse rights and
their attendant duties or obligations with the morally decent, or even with
the morally permissible. What one MUST do as a result of another's right -
should never be confused with one SHOULD or OUGHT to do morally (in the
absence of a right).

The right to life has eight distinct strains:

IA. The right to be brought to life

IB. The right to be born

IC. The right to have one's life maintained

ID. The right not to be killed

IE. The right to have one's life saved

IF. The right to save one's life (erroneously limited to the right to
self-defence)

IG. The Right to terminate one's life

IH. The right to have one's life terminated

IA. The Right to be Brought to Life

Only living people have rights. There is a debate whether an egg is a living
person - but there can be no doubt that it exists. Its rights - whatever
they are - derive from the fact that it exists and that it has the potential
to develop life. The right to be brought to life (the right to become or to
be) pertains to a yet non-alive entity and, therefore, is null and void. Had
this right existed, it would have implied an obligation or duty to give life
to the unborn and the not yet conceived. No such duty or obligation exist.

IB. The Right to be Born

The right to be born crystallizes at the moment of voluntary and intentional
fertilization. If a woman knowingly engages in sexual intercourse for the
explicit and express purpose of having a child - then the resulting
fertilized egg has a right to mature and be born. Furthermore, the born
child has all the rights a child has against his parents: food, shelter,
emotional nourishment, education, and so on.

It is debatable whether such rights of the fetus and, later, of the child,
exist if the fertilization was either involuntary (rape) or unintentional
("accidental" pregnancies). It would seem that the fetus has a right to be
kept alive outside the mother's womb, if possible. But it is not clear
whether it has a right to go on using the mother's body, or resources, or to
burden her in any way in order to sustain its own life (see IC below).

IC. The Right to have One's Life Maintained

Does one have the right to maintain one's life and prolong them at other
people's expense? Does one have the right to use other people's bodies,
their property, their time, their resources and to deprive them of pleasure,
comfort, material possessions, income, or any other thing?

The answer is yes and no.

No one has a right to sustain his or her life, maintain, or prolong them at
another INDIVIDUAL's expense (no matter how minimal and insignificant the
sacrifice required is). Still, if a contract has been signed - implicitly or
explicitly - between the parties, then such a right may crystallize in the
contract and create corresponding duties and obligations, moral, as well as
legal.

Example:

No fetus has a right to sustain its life, maintain, or prolong them at his
mother's expense (no matter how minimal and insignificant the sacrifice
required of her is). Still, if she signed a contract with the fetus - by
knowingly and willingly and intentionally conceiving it - such a right has
crystallized and has created corresponding duties and obligations of the
mother towards her fetus.

On the other hand, everyone has a right to sustain his or her life,
maintain, or prolong them at SOCIETY's expense (no matter how major and
significant the resources required are). Still, if a contract has been
signed - implicitly or explicitly - between the parties, then the abrogation
of such a right may crystallize in the contract and create corresponding
duties and obligations, moral, as well as legal.

Example:

Everyone has a right to sustain his or her life, maintain, or prolong them
at society's expense. Public hospitals, state pension schemes, and police
forces may be required to fulfill society's obligations - but fulfill them
it must, no matter how major and significant the resources are. Still, if a
person volunteered to join the army and a contract has been signed between
the parties, then this right has been thus abrogated and the individual
assumed certain duties and obligations, including the duty or obligation to
give up his or her life to society.

ID. The Right not to be Killed

Every person has the right not to be killed unjustly. What constitutes "just
killing" is a matter for an ethical calculus in the framework of a social
contract.

But does A's right not to be killed include the right against third parties
that they refrain from enforcing the rights of other people against A? Does
A's right not to be killed preclude the righting of wrongs committed by A
against others - even if the righting of such wrongs means the killing of A?

Not so. There is a moral obligation to right wrongs (to restore the rights
of other people). If A maintains or prolongs his life ONLY by violating the
rights of others and these other people object to it - then A must be killed
if that is the only way to right the wrong and re-assert their rights.

IE. The Right to have One's Life Saved

There is no such right as there is no corresponding moral obligation or duty
to save a life. This "right" is a demonstration of the aforementioned muddle
between the morally commendable, desirable and decent ("ought", "should")
and the morally obligatory, the result of other people's rights ("must").

In some countries, the obligation to save life is legally codified. But
while the law of the land may create a LEGAL right and corresponding LEGAL
obligations - it does not always or necessarily create a moral or an ethical
right and corresponding moral duties and obligations.

IF. The Right to Save One's Own Life

The right to self-defence is a subset of the more general and all-pervasive
right to save one's own life. One has the right to take certain actions or
avoid taking certain actions in order to save his or her own life.

It is generally accepted that one has the right to kill a pursuer who
knowingly and intentionally intends to take one's life. It is debatable,
though, whether one has the right to kill an innocent person who unknowingly
and unintentionally threatens to take one's life.

IG. The Right to Terminate One's Life

See "The Murder of Oneself".

IH. The Right to Have One's Life Terminated

The right to euthanasia, to have one's life terminated at will, is
restricted by numerous social, ethical, and legal rules, principles, and
considerations. In a nutshell - in many countries in the West one is thought
to has a right to have one's life terminated with the help of third parties
if one is going to die shortly anyway and if one is going to be tormented
and humiliated by great and debilitating agony for the rest of one's
remaining life if not helped to die. Of course, for one's wish to be helped
to die to be accommodated, one has to be in sound mind and to will one's
death knowingly, intentionally, and forcefully.

II. Issues in the Calculus of Rights

IIA. The Hierarchy of Rights

All human cultures have hierarchies of rights. These hierarchies reflect
cultural mores and lores and there cannot, therefore, be a universal, or
eternal hierarchy.

In Western moral systems, the Right to Life supersedes all other rights
(including the right to one's body, to comfort, to the avoidance of pain, to
property, etc.).

Yet, this hierarchical arrangement does not help us to resolve cases in
which there is a clash of EQUAL rights (for instance, the conflicting rights
to life of two people). One way to decide among equally potent claims is
randomly (by flipping a coin, or casting dice). Alternatively, we could add
and subtract rights in a somewhat macabre arithmetic. If a mother's life is
endangered by the continued existence of a fetus and assuming both of them
have a right to life we can decide to kill the fetus by adding to the
mother's right to life her right to her own body and thus outweighing the
fetus' right to life.

IIB. The Difference between Killing and Letting Die

There is an assumed difference between killing (taking life) and letting die
(not saving a life). This is supported by IE above. While there is a right
not to be killed - there is no right to have one's own life saved. Thus,
while there is an obligation not to kill - there is no obligation to save a
life.

IIC. Killing the Innocent

Often the continued existence of an innocent person (IP) threatens to take
the life of a victim (V). By "innocent" we mean "not guilty" - not
responsible for killing V, not intending to kill V, and not knowing that V
will be killed due to IP's actions or continued existence.

It is simple to decide to kill IP to save V if IP is going to die anyway
shortly, and the remaining life of V, if saved, will be much longer than the
remaining life of IP, if not killed. All other variants require a calculus
of hierarchically weighted rights. (See "Abortion and the Sanctity of Human
Life" by Baruch A. Brody).

One form of calculus is the utilitarian theory. It calls for the
maximization of utility (life, happiness, pleasure). In other words, the
life, happiness, or pleasure of the many outweigh the life, happiness, or
pleasure of the few. It is morally permissible to kill IP if the lives of
two or more people will be saved as a result and there is no other way to
save their lives. Despite strong philosophical objections to some of the
premises of utilitarian theory - I agree with its practical prescriptions.

In this context - the dilemma of killing the innocent - one can also call
upon the right to self defence. Does V have a right to kill IP regardless of
any moral calculus of rights? Probably not. One is rarely justified in
taking another's life to save one's own. But such behaviour cannot be
condemned. Here we have the flip side of the confusion - understandable and
perhaps inevitable behaviour (self defence) is mistaken for a MORAL RIGHT.
That most V's would kill IP and that we would all sympathize with V and
understand its behaviour does not mean that V had a RIGHT to kill IP. V may
have had a right to kill IP - but this right is not automatic, nor is it
all-encompassing.

==============================================================
AUTHOR BIO (must be included with the article)



Sam Vaknin ( http://samvak.tripod.com ) is the author of Malignant Self
Love - Narcissism Revisited and After the Rain - How the West Lost the East.
He served as a columnist for Global Politician, Central Europe Review,
PopMatters, Bellaonline, and eBookWeb, a United Press International (UPI)
Senior Business Correspondent, and the editor of mental health and Central
East Europe categories in The Open Directory and Suite101.

Until recently, he served as the Economic Advisor to the Government of
Macedonia.

Visit Sam's Web site at http://samvak.tripod.com