A common law perspective on abortion

Who has standing to bring legal action on the part of the child/fetus/entity, only the child's guardian, or everyone? How does fertilization create obligation? 

Implicitly, the pro-life position claims that everyone has standing to bring charges against the mother at any time for killing her child or failing to care for the child until someone else can take over. Does this position make sense?

I interpret common law to say that persons only have standing if their consent has been violated, or if they act as agents for persons whose consent has been violated. (Damaging someone's property accidentally without their consent constitutes a tort, purposefully using their bodies or property without their consent constitutes a crime.) This prevents busybodies from from bringing frivolous cases or violating the free association of others. To bring suit, one must have standing. No standing, no case. If the person who has been harmed does not wish to sue or to bring charges, no suit or charges should be brought. If some third party wishes to sue or bring charges, they must show how they have been damaged or had their consent violated. So even with regard to murder, it might be the case that some persons have standing to bring charges and others do not.

Children do not have standing on their own, only competent adults can sue or be sued. This means that children need guardians to stand for them in court. But the role of guardian does not only consist of standing for them in court and taking responsibilities for any crimes or torts they commit. It also requires the guardian to nurture the child. The owner of a domestic animal also stands for the animal in court, but the role of guardian is more intimate and has more obligations associated with it.

If the mother refuses to act as guardian of her child, the father may take this role. If the father is also unwilling, any relative may take on the role. If no relatives exist, or they are all unwilling, then the child can be put up for adoption. But while the child is not viable outside the womb, only the mother can actually fulfill all the requirements of a guardian.

In an ordinary murder case, the victims have standing, and since they are dead, their heirs have standing to bring charges, at least. Perhaps anyone has standing to bring charges of murder of an adult or independent child. The case of a pregnant woman is no different, if we assume the child is viable outside the womb.

If a child is murdered in the womb, it is the guardian who has standing to bring charges. Or is it everyone? Let’s consider both.

Consider the period of time when the child is not viable outside the womb. During that time, the mother is the only person who can truly act as guardian for the child. Only she can nourish it and nurture it. If that is the case, only she can act as guardian, and only she has standing to bring charges. If I sue her, seeking to be declared the guardian of her child, I can bring the most compelling sorts of evidence and yet I am physically incapable of  replacing her. No matter how good my arguments are, if I am unable to physically replace the mother and sustain the child's life, the suit is futile, there is no remedy available. Either the child is removed from the mother's womb and dies, or it remains and the mother's consent is violated.

Imagine that I was able to become the legal guardian in spite of this. Clearly I am violating the mother's consent. She is forced to continue the pregnancy unwillingly. What obligates her to do so?

Some would say that when she engaged in sexual intercourse, she tacitly agreed to the consequence. I think there are good reasons to consider this tacit agreement not binding. Specific performance of a contractual obligation to perform services is a form of slavery or indentured servitude, and does not belong in the jurisprudence of a free society. In ordinary contracts, when a party to the agreement wants to incentivize another to assure performance, the remedy is to have collateral involved, so that failure to perform the service triggers a change of ownership of the collateral. This remedy is not available for tacit agreements such as engaging in sex. And with whom is the agreement made, to whom is the obligation owed? The child does not yet exist, and they will not be competent to enter into contractual agreements for a long time, should they come into existence. Since the mother is the default guardian of the child, this is an agreement between the woman and herself. No one has standing to sue the mother for violating this contract. Maybe the father? But then the father could give consent for the abortion. And as pointed out before, the father cannot fulfill the role of guardian while the child is not yet viable.

Perhaps she is obligated because the fetus is a human being. Then maybe everyone has standing to bring charges. Can they bring charges against a woman for getting a hysterectomy while not pregnant? Can they bring charges against a man for ejaculating and not rescuing all the sperm? If it was technically feasible to fertilize all of a woman's eggs, would she be obligated to do so? Would a man be obligated to rescue every sperm that escaped his body, or even a significant fraction, if it were technically feasible to do so? How does fertilization create obligation? 

Fertilization marks a significant milestone in the development of a child, but there is no obvious reason to consider it to create a line between when an egg is part of the mother's body and when it is a human child. Eggs and sperm are human, and they are alive. Catholics worry about unfertilized eggs, but even they give up with sperm. 

The alternative is to give the guardian the choice of when and whether a pregnancy represents a person who cannot be killed. She has standing to bring charges against a murderer. No one else does. Unless she prosecutes herself, she cannot be prosecuted.

There is a period of time when the child is potentially viable outside the womb, but to remove the child from the womb without killing it will be very costly and difficult for the mother. The new guardian is responsible for all expenses and perhaps for compensating the mother.

I conclude that for anyone to have standing to prevent an abortion, they must be willing and able to act as the child's guardian, and in fact take on that role immediately, paying all medical expenses, etc. There is a period of time during which this is technically infeasible. During that time, the mother may abort the fetus at will, demonstrating her withdawal of her consent from the pregnancy. She has no agreement with any other person, and if she did it would not be binding. As the guardian of the potential child, only she has standing to bring charges against herself. 

As technology improves, the duration of this period will probably become shorter. We all can look forward to the day when all such children can be rescued without violating the consent of the mother.

This is where the blog post should have ended. But during editing I found a big error.

Rather than rewrite the whole thing, I want to leave it as is and now discuss the big error. You get to experience it just like I did!

What if a person was murdered by his heir? If only the heir has standing, then no one can bring charges of murder against the heir. This is a huge problem.

What does this establish about who has standing to bring charges of murder? We don’t want it to only be the guardian or the heir, or those persons have a free pass to commit murder. It sort of works with the guardian, since persons who would have been willing to become guardian could have standing. Once the child can live apart from the mother, she has an obligation to transfer guardianship rather than kill the child. Can we find a parallel for heirs? I would have been willing to adopt the victim into my family, so I have standing to bring charges of murder against the heir? Or just anyone can bring charges against the guardian or heir? 

Anyhow, this undermines my argument.

Imagine that a pregnant woman is involved in an accident that makes her miscarry. She may be heartbroken by the death of her child, or she might feel relieved of a burden. She gets to choose the significance of that event for her. If she chose not to sue the tortfeasor, who would have standing to sue them  against her wishes? This implies she has the power to choose. If instead she confers with an abortionist to terminate her pregnancy, is this really different? If it was an accident, she is within her rights to forgive the person responsible. She could also forgive an attempt at murder against herself, though others might want to prosecute.

Does the mother get to decide, am I the guardian of a child, or the possessor of a domestic animal or lump of tissue? If I am the guardian of a child, no one may kill my child. If I am the possessor of a domestic animal, I may kill it. If the child cannot be rescued, others must accept her attitude. Once it is possible, they may rescue the child.

Can she bring the child to term and continue to consider it a domestic animal? If so, someone can sue to become guardian.  Guardian trumps owner. Can you imagine the court proceeding? One person arguing she owns the child as a domestic animal, the other side arguing that they wish to adopt the child. I think the guardians ought to win, even in the case of an actual domestic animal. If someone is willing to rescue an animal from a factory farm and make it their pet, I think they have a case. Someone willing to rescue a child from being treated as an animal has even better grounds for taking action..

When should we have empathy for the potential child? Do we have empathy for unferilized eggs and individual sperm cells? Why? Now conception happens. Why should I feel empathy for a single cell organism? The cell may divide and become embedded in the mother's womb. When should I feel empathy? I think it is when the mother commits to herself to the pregnancy. And if she changes her mind before the child can feasibly be rescued, I do not want to coerce her to fulfill her commitment. I think it should be voluntary from beginning to end. No one should hold a gun to her head, even if they promise to take custody of the child at the earliest possible and agreeable moment.

This is a draft, feel free to suggest improvements in the comments.