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.
About the Author
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