The Aborted Contract And the Right to Life

By Sam Vaknin

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.

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 -vbut, then they gamble, not contract).

When a woman engages in voluntary sex, does not use contraceptives
and gets pregnant v 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 v 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 v 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 v through
its apparatuses v stands for the embryo the same way that it
represents minors, the mentally retarded, and the insane. Society
steps in v and has the recognized right and moral obligation to do
so v 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" v 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 v 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 v 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 v not in the desire to experience.

Another variant says that a person has the right to life because
once his life is terminated v 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) v 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 v she cannot claim her rights back by
annulling the contract unilaterally. No contract can be annulled
this way v 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 v 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 v 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 v 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 v 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 v 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 v 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 v we engage in
helping others to materialize their potential. We should always do
so willingly and reasonably v 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 v 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) v 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 v 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 v
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 v 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 v
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 v 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 v 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 v 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 v 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.

===============================================================

AUTHOR BIO (must be included with the article)


Sam Vaknin 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 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