The Aborted Contract

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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.

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