Though I do not think that a responsibility argument is necessary in order to dismantle the bodily-rights argument or other pro-choice arguments, the responsibility incurred in the creation of a new human being is a very important consideration in pregnancies other than rape pregnancies. I would like to take issue with an attempt to deny much of that importance:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house – for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars. It remains equally absurd if we imagine it is not a burglar who climbs in, but an innocent person who blunders or falls in. Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don’t want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not – despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do – for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.

The first thing to notice is that if we read this paragraph by Judith Jarvis Thomson literally, she finds her burglar analogy and her people-seeds analogy to lead to two quite different conclusions about responsibility. Since burglars are unwanted, a homeowner does not have to accept the presence of a burglar who does enter, even if the homeowner has voluntarily left the window open; and therefore Thomson reasons that if an unborn child is unwanted, the mother does not have to accept its presence, even if she has voluntarily had sex. It would be “absurd” to say that she did. It would be “still more absurd” if she had taken careful precautions (in the analogy, putting bars on the windows), but absurd even if she hadn’t.

But in the people-seeds analogy, her conclusion of non-acceptance – “Does the person-plant who now develops have a right to the use of your house? Surely not . . .” – depends on very careful precautions. “. . . fine mesh screens, the very best you can buy . . .” is a condition for “Surely not.” (“Surely not,” of course, means “You are surely not responsible, so the unborn child has no right.”)

So in the event of carelessness about contraception – according to the people-seeds argument – the woman does incur some responsibility.

We might think that perhaps Thomson’s underlying thought was not what she literally said, and perhaps her people-seeds argument was intended merely to expand on what she had already said about the burglar – despite the use of two different metaphors – and hence would not change her “absurd” conclusion about the burglar.

We might think that, if not for her “recapitulation” near the end of her paper:

if [parents] have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.

(The sentence refers literally to a born child, but this is a recapitulation of what she had said earlier about the unborn. So both of the moral principles – the “do not,” and the “if” condition without which the “do not” would become a “do” – apply to an unborn child as well.)

Another Kind of Responsibility

At this point we should mention a kind of responsibility other than the kind incurred simply in the act of creation of a new human being. Thomson in her paper considers the possibility of a right not to be killed, and, as we have seen above, also addresses the possibility that responsibility for another human being can be incurred in some way through the process of that person’s creation. Does she also consider the possibility of a responsibility that might be incumbent simply because a helpless person not only has a right not to be killed, but also a right to be taken care of? Yes, she does consider that possibility, though she does not say “responsibility” – she speaks of “Minimally Decent Samaritan laws.”

An argument for strong laws of this kind is the “de facto guardian” argument. The authors of “De Facto Guardian” find, within themselves, moral intuitions to the effect that an adult “in a situation in which she is the only person in the vicinity who can help a child in need. . . . now shoulders the same obligations of a parent or guardian . . . temporarily.” My intuition agrees at least up to this point. (I have explored correct and incorrect moral intuitions elsewhere.)

The farthest Thomson, however, seems willing to go is when she says:

It would [meaning with legal weight] be indecent in the woman to request an abortion, and indecent in a doctor to perform it, if she is in her seventh month, and wants the abortion just to avoid the nuisance of postponing a trip abroad.

So the only thing further that needs to be said about this kind of responsibility is that Thomson’s moral intuitions don’t allow it to extend as far as do my intuitions and those of some others.

Thomson does, however, take for granted the legitimate interest of the state in protecting unborn persons – and hence the state’s duty to protect them – though she thinks that that interest and duty should not usually prevail, due to lack of responsibility (as she sees it) and other considerations.

 

Getting back now to the burglar and the people-seeds, and looking at each of those arguments literally, we can say that Thomson’s burglar argument depends for its validity on four elements all working:

1. we must agree with the moral intuition that a homeowner need not tolerate a burglar in their house, even if they left the window open (I think Thomson has laid an effective groundwork here by picking a moral intuition we can certainly agree with)

2. we must agree that in assessing a homeowner’s or a pregnant woman’s responsibility – responsibility in terms of freedom to evict or a lack of such freedom – it does not make any difference what is being evicted – a burglar or an unborn child

3. we must agree that a pregnant woman is no more responsible for a sperm having entered her body than a homeowner is for a burglar having entered his/her house

4. we must agree that (analogous to the reasonableness of leaving a window open) it would be unreasonable to expect abstinence from sex – she says in the people-seeds analogy, but it would apply to the burglar as well: “Someone may argue that you are responsible . . . that [the people-seed] does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors” (an argument she rejects).

So her burglar argument depends for its validity on these four elements working; and her people-seeds argument depends basically on the same four working, except that with the people-seeds argument Thomson concedes more in the first element. So that element becomes:

1. we must agree with the moral intuition that a homeowner need not tolerate a people-seed in his/her house, if the homeowner has taken very careful precautions against it

Though we will all agree with the burglar version of 1, I don’t think we should fully agree with the people-seeds version of 1. And in the cases of both the burglar argument and the people-seeds argument, I don’t think we should agree with 2 or 3. And I think there is a logical flaw in 4.

But before I get to the people-seeds version of 1, let’s see what is wrong with 2, 3 and 4 in the burglar argument.

The problem with 2, of course, is that there is in fact a difference between a burglar and an unborn child. Anyone capable of burgling a house, if ushered out, will survive. An undeveloped child will die, unless some arrangement for it has been made. Here I feel that the de facto guardian concept should come into play. Thomson will eventually go on to speak of a very minimal (indeed) Minimally Decent Samaritanism, but here, where she uses the word “responsibility” itself, she does not concede even that much.

However, Thomson does here do the surprising segue from the burglar to the people-seeds. People-seeds, if the homeowner cannot turn them over to someone else, are dependent on the homeowner, and on the homeowner alone, for their survival. Perhaps Thomson does this segue out of some consciousness of the fact that many of us would expect an adult to be a de facto guardian for a child. Perhaps she is trying to have the best of both worlds in the reader’s intuitions – both our intuitive antipathy towards burglars (which militates toward our rejecting the idea of any responsibility), and our intuitive recognition that (unlike with a burglar) there is good analogousness between the vulnerability of an unborn child and the vulnerability of a people-seed – and that a child deserves some Samaritanism.

Thomson’s conscious or unconscious sleight of hand in 3 revolves around this choice of words: “If the room is stuffy, and I therefore open a window to air it . . .” This is misleading because the woman’s role in becoming pregnant is greater than just that of a homeowner who leaves a window open for a purpose other than that which eventuates. If we really want to compare a homeowner’s behavior in opening a window “in full knowledge that there are such things as burglars” with a woman’s behavior in full knowledge of how babies are made, the nearest analogy would be to say:

“A homeowner who leaves their door unlocked and is burgled is like a woman who falls asleep in an unlocked room and is impregnated in her sleep.”

The homeowner in Thomson’s story opened the window for air, not to let the burglar in; therefore that homeowner is like a woman who has not consciously consented to sex. The homeowner is not like a woman who has consented, though Thomson tries to suggest that the homeowner is. So only the above “falls asleep” analogy is a good analogy with burglary. In the “falls asleep” version, I would agree that the woman, in spite of having left her room unlocked, is not responsible. She has been raped. But Thomson’s analogy is not like that.

And what about element 4, “we must agree that (analogous to the reasonableness of leaving a window open) it would be unreasonable to expect abstinence from sex”?

Let us accept Thomson’s contention that one cannot live without sex. Still there is a flaw in her argument, and it can be demonstrated with another analogy: One cannot live without food, either, yet we expect to pay for food. Hardly anyone gets it without some quid pro quo.

For sex, the quid pro quo is that one accepts responsibility for the possible outcome of the slight risk that one runs.

But if we are to apply a legal-contractual analysis like this in what is really a psychological and moral context, the transactions involved would be more complicated than when someone buys a sandwich.

First, think of a slot machine from the point of view of the casino. If the casino’s luck is bad on the occasion of one particular wager, the casino will have to pay big. That obligatory big payoff was compensated for by the probability of receiving regular benefits (small wagers that it won). In a similar way, a woman (or a man) who obtains the benefit of sex will run a risk of incurring a moral responsibility to make a big payoff sooner or later.

But you may object that the payoff for sex is owed only to nature, the giver of the benefit, and that since it is not owed to any person, it is not really owed at all in the normal sense. You might say that sex should be free of cost, like enjoying the beauty of nature.

However, what if enjoying the beauty of nature free of cost sometimes involved killing somebody along the way? That would change the equation.

You have received benefits that would cause you to incur a debt. Then someone comes along who needs that payoff, who cannot live without that payoff. That new person comes along produced by a sex act that was, for you, one of a series of benefits.

A woman who voluntarily has sex is getting something of value to her, and that something is part of the goods obtainable from nature. So that something may seem to be at the expense of no human being, and usually it is at the expense of no human being. But nature includes the ingredients for a child (a scientific fact), and the woman’s actions can help bring the ingredients together and produce that child. In those cases she is getting something that is part of the goods obtainable from nature, but in those cases it is not true that it is at the expense of no human being – in those cases she is getting something of value to her that is part of the goods obtainable from nature AND is at the expense of that child if one results (the child will have the misfortune of coming into existence in a state of dependency on her body).

So someone has come along who cannot live without the big payoff, and I think that the moral intuitions of everyone who really considers that “someone” to be a person, will say that that someone, the unborn child, deserves that big payoff. The debt gets called in. But the moral intuitions of those, like Thomson, who only consider that someone to be a person for the sake of argument, may not say that.

Enjoying sex free of cost involves killing an unborn child if one happens to eventuate and if one feels it as a burden. But it is not always free of cost; sometimes a debt is incurred. And if that alone does not create enough responsibility to require the woman – in the cases of many pregnancies, not all – to refrain from killing, remember that she is also in the position of a de facto guardian.

The father of an unborn child owes a payoff equal to that of the mother. For him the payoff will necessarily take the form of supporting the mother financially and emotionally, and shouldering many of the chores. Elaboration of his role, and also discussion of his possible avoidance, is in order, but would fall outside the framework of Thomson’s analysis and thus of this answer to her.

“Social contract” thinking may tell us that it is socially functional for a person to pay for a sandwich. But such thinking cannot tell us that it is right or just for a person to pay for a sandwich. Only our moral intuitions can tell us that. The sex-woman-child obligations that I have described may not presently be recognized in legal-contractual thinking, but they may become recognized in the more sophisticated legal-contractual thinking of the future. For now, those obligations are, whether described in my words or in some other words, the moral intuition of many, many people. (Just as the rightness of paying for a sandwich rests, ultimately, only on the moral intuition of many, many people.)

A quite different kind of legal-contractual analysis might be applied if we remember that humanity is more than just the sum of its parts, that it is also a collectivity, and that we all depend on it as such. Everyone begins their life by using the body of one representative of that collectivity – they may even use a body that has already been used by other children three or four or n times and might have started feeling tired. So everyone should be prepared, if the necessity ever arises, to pay back to that same representative or another representative. How a pregnant woman can pay back is obvious. Others should be prepared to pay back in other ways.

Really these two kinds of legal-contractual analysis should both be applied simultaneously.

Finally, now, to the people-seeds version of 1, which I had said that we should not fully agree with. Here Thomson concedes that those who have not been careful about contraception should bear responsibility. This is good as far as it goes. But her contention that those who have been careful need not bear responsibility depends, as in the burglar argument, on the contention that sex is a necessity that should be cost-free; and that I have discussed above.

 

This has all been about responsibility. Regarding the obvious next question, whether abortion should automatically be legal even when there is no responsibility, I have written in an essay
“Dismantling the Bodily-Rights Argument without Using the Responsibility Argument.”

© 2016

 

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Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World