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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
demonstrated existence of a reasonably (and reasonable) free will. If fulfillment of 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 result of forced sex (rape being a special case) or which are life threatening should or could, morally, be terminated. Using transactional language: 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 express will of one of parties and despite all reasonable measures that 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 other party to these implicit agreements: embryo. To start with, it lacks consciousness (in sense that is needed for signing an enforceable and valid contract). Can a contract be valid even if one of "signatories" lacks this sine qua non trait? In absence of consciousness, there is little point in talking about free will (or rights which depend on sentience). So, is contract not a contract at all? Does it not reflect intentions of parties?
The answer is in negative. The contract between a mother and her fetus is derived from larger Social Contract. Society – through its apparatuses – stands for embryo same way that it represents minors, mentally retarded, and insane. Society steps in – and has recognized right and moral obligation to do so – whenever powers of parties to a contract (implicit or explicit) are not balanced. It protects small citizens from big monopolies, physically weak from thug, tiny opposition from mighty administration, barely surviving radio station from claws of devouring state mechanism. It also has right and obligation to intervene, intercede and represent unconscious: this is why euthanasia is absolutely forbidden without consent of dying person. There is not much difference between embryo and comatose.
A typical contract states rights of parties. It assumes 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 presumed existence of Social Contract. The typical contract assumes that there is a social contract which applies to parties to contract and which is universally known and, therefore, implicitly incorporated in every contract. Thus, an explicit contract can deal with property rights of a certain person, while neglecting to mention that person's rights to life, to free speech, to enjoyment fruits of his lawful property and, in general to a happy life.
There is little debate that 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 unborn fetus?
One approach is that 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 conditions. Rationality, or a morally meaningful and valued life are some of 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 right to life because it desires it.
But then what about chronic depressives who wish to die – do we have right to terminate their miserable lives? The good part of life (and, therefore, differential and meaningful test) is in experience itself – not in desire to experience.
Another variant says that a person has right to life because once his life is terminated – his experiences cease. So, how should we judge right to life of someone who constantly endures bad experiences (and, as a result, harbors a death wish)? Should he better be "terminated"?
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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
