Abortion - The Aborted 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 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