The Aborted Contract Essay, Research Paper

Sam Vaknin’s Psychology, Philosophy, Economics and Foreign Affairs Web SitesThe 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 foetus) are discussed in terms normally reserved to natural catastrophes (force majeure, in legal lingo). At times, the embryo is compared to cancer: 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 foetus. A contract entails the demonstrated existence of a reasonably (and reasonable) free will. If the fulfilment of the obligations in a contract 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. 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 its crystallization. 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 validated even if one of the “signatories” lacked this sine qua non trait? In the absence of consciousness, there is little point in talking about free will. 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 foetus is derived from the larger Social Contract. Society – through its apparatuses – stands for the embryo the same way that it represents minor, 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 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. The contract explicitly elaborates some of these rights and leaves others unmentioned because of the presumed existence of the Social Contract. The contract assumes that there is a social contract which includes the parties to the contract and which is universally known and, therefore, implicitly incorporated in every contract. Thus, an explicit contract can talk about the right of a person to a certain property but it will fail to mention that person’s rights to life, free speech, enjoying the lawful fruits of his 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 foetus? One approach is that the embryo has no rights until certain conditions are met and only upon their fulfilment is he transformed into a morally significant person. Opinions differ as to what are the conditions rationality, a morally meaningful and valued life are some of the oft used criteria. The fallibility of this venue 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 he desires it.

But then what about chronic depressives who desire 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 – 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 will cease. So, how should we judge the right to life of someone who constantly endures bad experiences (and, as a result, harbours a death wish)? 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 a Mother and those of her foetus 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 other. This is normal practice in contracts: they represent compromises, optimization – not maximization. The rights of the foetus 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 foetus. Many times contracts are the result of behaviour and witnessed by it, rather than by a piece of signed paper. Numerous contracts are verbal or behavioural. Other contracts, though implicit, are as binding as any of their written counterparts. 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 questions: (a) can the contract 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, or if one of the parties made a reasonable and full scale attempt to prevent its signature, thus expressing its inviolable 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 all are such cases.

This could be argued against by saying that, in case of economic hardships, or instance, the damage to the Mother’s future is certain. Her value filled, meaningful future is granted – and so is the detrimental effect that the foetus 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 foetus 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 will provide him with goods and services that he requires in order to materialize his potential. It sounds very much like many other human contracts. Take 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). Is the location of the pregnancy (in uterus, in vivo) to determine its future? Why should the Mother be denied her right to terminate the pregnancy after the foetus 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. Why not extend the woman’s ownership of her body and right to it further in time and space? 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, 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 prevent a service or to condition it (Mother: I will provide the goods and services that I agreed to provide to this foetus under this contract only if and when I will benefit from such provision) is a violation of the contract and should be penalized. Admittedly, at times we have a right to choose the immoral (because it has not been codified as illegal) – but that does not turn it into a moral choice.

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 have 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 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 foetus 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 foetus 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 foetus. The destruction of an egg and a sperm is even more serious philosophically: the creation of a foetus limits the set of all potentials embedded in the genetic material. The egg and sperm can be compared to the famous wave function (state vector) in quantum mechanics – incorporating millions of potential states. The foetus 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 – what should we say about 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 the future, we will 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 punishment: eternal ex-communication (”Karet”).

If abortion is indeed murder what should be the answers to 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 – 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, living no heirs (except the plaintiffs)?

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

If abortion is murder – why punish it so mildly? Why is it that there is a debate raging on 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 treatment says a lot.