Third Party & Independents Archives

Parental Obligations and Abortion

The Democratic Party leadership is beginning to realize that its support for on-demand abortions hurt the Party in 2004 election- and is considering softening its stance on the issue. Democrats have even chosen a mildly pro-life Senate leader in Harry Reid of Nevada. Given this opportunity for a political shift, this article is an attempt to explain a new way of looking at abortion. This article is timely because the majority of Americans do not support abortion on demand (and oppose partial birth abortion), but many of these same people cannot see unborn children before viability as full human beings.

The battleground over whether abortion should be legal has been mostly centered on whether an unborn child is a human being. This line is now firmly drawn, with most people against abortion claiming that an unborn child is a human being and most pro-choice advocates arguing that a fetus is not fully human. This disagreement has reached the end of its usefulness in changing many people's minds in the abortion debate. I have developed an alternate ground to oppose most abortions, one that may be more understandable to those who feel abortion is wrong but cannot put it on the level of murder/infanticide. The ground is parental responsibility. This article will lay out several propositions and show how they logically conclude that parents should have a legally enforceable obligation to not end the lives of their unborn children.

Proposition 1: Parents have responsibilities to their children that should be enforceable under the law

This is a rather uncontroversial position. For example, a parent who does not feed, cloth or house their newborn is guilty of child neglect or child abuse and can be either put in jail, lose custody of her child, or both. The retort that a parent can put her child up for adoption is no counterargument because adoption is just a means of passing legal obligations to someone who willingly assumes them (like someone agreeing to perform your duties under a contract, thus absolving you of your contractual obligations). In fact, if no willing adoptive parents or agency were available, this would not give parents license to simply leave their children by the side of the road to die.

Proposition 2: Parental duties stem from the willful act that created the child

Whether one thinks that an unborn child or fetus is a full human being, it is beyond dispute she is the offspring of two human parents. As a result, the unborn child, even if not fully human, is the child of her mother and father. The question then becomes when do parent obligations begin- and the contention of this article is that the only logical or rational point is conception, the point at which the child begins to exist.

Viewed through the perspective of parental obligations, viability is especially inappropriate as a starting point for parental responsibility. It would be bizarre to contend that mothers have no obligations to their offspring while the children are completely dependant, but have full obligations when the offspring who do not need their mothers as much. That is, biology and logic point in the opposite direction- when the unborn biologically need his mother most, her obligation would be highest. Nor is birth a rational point to draw the line of parental responsibility. The reason parents have duties to their children is because their voluntary act created the child/fetus, not because the child crossed from one place (the womb) into another (the hospital room). After all, could one seriously argue that when a child is attached to her mother, the mother owes the child no duty of care, but when the child is separated from the mother, suddenly she owes the child a full duty of care?

An example from a related area of law will help elucidate this analysis. In People in Interest of S.P.B., a biological father who had offered to pay for an abortion was still responsible for paying child support after the mother decided to carry the pregnancy to term. The ground for requiring the father to honor this obligation is linked to the essential argument of this article- it was his voluntary sexual act with the mother that brought the child/fetus into being that led to enforceable obligations to support the child. Moreover, the father could not absolve himself of the responsibility by offering to pay for an abortion.

One possible objection to this model is that admitting that mothers have legally-enforceable duties to their unborn children would lead to intrusive monitoring of pregnancies. This is actually one of two objections: (i) Mothers should be able to do anything, no matter how much harm this brings to their unborn children. This is easily answered by the realization that mothers have duties to their unborn children. The second, more powerful objection is: (ii) while we concede that doing things extremely harmful to an unborn child is wrong and should be outlawed, we are not comfortable allowing this amount of monitoring. This is a strong objection, but hardly a novel one. Our constitution places limits on our ability to catch many people who have committed the most heinous crimes. The Fourth Amendment is the quintessential example of this trade off- it allows hundreds of thousands of criminals to escape punishment because police cannot use techniques like warrantless in-home searches. The same concerns and balancing could apply to actions of pregnant mothers. For example, the law could simply stop at outlawing all abortions not resulting from rape or done to protect the life of the mother. The enforcement would be limited to shutting down all doctors who perform abortions, requiring no monitoring of mothers. While some abortions would still occur, this would be no different than the extra crimes that occur because of the Fourth Amendment.

Proposition 3: Having an abortion transgresses the duty of care to the unborn child

Since parents have duties to their children, and that those duties start at conception, the next question is whether having an abortion breaches this duty. Abortion does breach this duty except when the mother's life is at stake. One can view abortion in two ways: (i) removing the child from the womb or (ii) actively killing the unborn child. When the burden of the mother is not so great that carrying the child to term would seriously endanger her life, either (i) or (ii) is a breach of duty from a mother to her child. After all, nothing less that a threat to life would excuse parents for starving their newborn to death- even if feeding the newborn meant the mother and father had to work a job to obtain the food.

The distinction between killing and merely failing to take care of a child has one final important implication- the case of rape. Notice that in proposition 2, the mothers duties flowed from her voluntary decision to take an action that brought her child into existence (this was also the source of the parental responsibility for the father in People in Interest of S.P.B.). In the case of rape, this argument does not apply, and the mother would have no more responsibility to the unborn child as she would to a stranger (the raping father would still have duties). Here the distinction between failing to take care of a child and killing the child becomes significant. If one believes an unborn child is not a human being, this distinction would be unproblematic for rape cases. Since there is no parental duty, the mother could do what she wanted and have any method of abortion. If one believes an unborn child is a human being, they would insist that the mother cannot kill her unborn child (ii), but can decline to take care of it (i). As a result, she could have the child removed from her body.

In summary, all parents have duties to their children based on their voluntary actions that create their offspring, and abortion is usually a breach of that duty. I would challenge all of those who are skeptical about the pro-life position to take this argument seriously and reconsider whether parents do indeed have duties to unborn children. To those on the pro-life side, this argument can allow you to talk about abortion not as murder but rather as a breach of a parental duty. It is far more understandable how someone can breach a duty that has not yet been spelled out in the law than to understand how someone can take a human life.

If we change the labels of pro-life and pro-choice and talk about the amount of care parents owe their unborn children, our national can have a more productive discussion of this issue. With the current political flux of the abortion issue, this change in terminology and dialogue would be especially beneficial. And on that note... have a happy new year!

Posted by Misha Tseytlin at December 31, 2004 9:25 PM