A friend of mine called to discuss a paper she had to write for PHL281 (biothics) a few weeks ago. The essay topic was the following:
In discussing the case of Jane and Jack, George Harris says: “Jack is equally free from any responsibility to Jane in terms of the fetus should she decide to keep it” (Harris 1986, 597). Why does he think this? Is he right?
I’ll quote the relevant part of the article here (emailed to me), as I’m having a hard time finding it online:
2. Jane and Jack, two attractive, healthy individuals, meet at a party given by mutual friends. During the weeks and months that follow, a casual but pleasant sexual relationship develops between them. As a result, Jane becomes pregnant. But after learning of the pregnancy, Jack reveals that he is a moderately serious Catholic and from a combined sense of guilt, responsibility, and parental instinct proposes that they be married. Jane, on the other hand, being neither Catholic nor desirous of a husband, decides to abort. Respecting her religious differences and her right to marry whomever she pleases, Jack offers to pay all of Jane’s medical expenses, to take complete responsibility for the child after it is born, and to pay her a large sum of money to carry the fetus to term. Jane nonetheless decides to proceed with the abortion.
Similarly, in the second case, the fetus is Jane’s in a way that it is not Jack’s. The reasons, however, are slightly different than in the first case. Although Jane and Jack here each autonomously decide to pursue their interests in sex, neither has decided to pursue an interest in pro-creation. The fact that Jack has neglected to reveal his beliefs about abortion vitiates any claim he has that a harm done to the fetus is a violation of his autonomous pursuit of procreation. Rather, he has left it to Jane to assume that his only interest is in the pleasure of sex with her, and it is only this interest that she has a moral obligation to honor in terms of his autonomy. Had she promised him love and a family in order to have sex with him, she would have violated his autonomy both in regard to his interest in sex with love and his interest in procreation. Neither of these has occurred here. But though Jane is free from considerations of Jack’s autonomy in deciding whether to abort or to keep the fetus, she could decide to keep it without violating her own sense of autonomy. It is this fact that makes the fetus hers in a way that it is not Jack’s.
Yet by parity of reasoning, Jack is equally free from any responsibility to Jane in terms of the fetus should she decide to keep it. For, like Jane, he has not given his consent to the use of his body for the pursuit of her interest in procreation. He could, however, autonomously decide to take on the responsibility for the fetus. But she could not lay claim to a violation of her autonomy if he did not so choose. Had he promised her love and a family in order to have sex with her, he would have violated her autonomy in regard to her interest in sex with love and her interest in procreation. But since he has done neither of these, she has no valid claim that the fetus is a moral liability for him.’ Thus the pursuit of casual sex can be quite compatible with the principle of autonomy; it is nonetheless morally perilous for both men and women.
The essay topic argument (focusing on the last paragraph, freeing Jack of responsibility), as I see it:
- Jack only gave his consent to the use of his body for sex.
- Giving consent to the use of one’s body for sex does not imply consent to the use of one’s body for procreation. [implied]
- Jack did not give his consent to the use of his body for the pursuit of procreation. [from 1+2]
- If one does not consent to the use of his body for the pursuit of procreation, then one is free from any responsibility regarding offspring.
- Therefore, Jack is free from any responsibility to Jane should she chose to “keep” the fetus. [from 3+4]
The “perilous” thing is that this is a valid argument. However, it is not a sound argument. The problem is that few people are willing to challenge the second or fourth premises, which would be necessary to reject it.
Objections to the Second Premise
Planned Parenthood v. Casey, the  Supreme Court decision that confirmed Roe v. Wade, stated, “in some critical respects abortion is of the same character as the decision to use contraception… for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.“
The idea that you can consent to the use of your body for sexual intercourse without consenting to the use of your body for procreation gets to the heart of the contraception issue. UTSFL does not take a position on contraception, as we recognize it has a complex relationship to abortion. It’s not as simple as “more condoms, less abortion,” when contraception carries with it the implicit assumption that you can pursue an interest in sex without pursuing an interest in procreation. Abortion comes to be viewed as a necessary backup to failed contraception. Otherwise, if consent to procreation is entirely separated from sex, an unwanted pregnancy can be viewed, as Harris views it, as an affront to the autonomy of a person.
Except, I don’t agree with Harris.
Objection: One cannot totally separate consent to the use of one’s body for sexual intercourse from consent to the use of one’s body for procreation
Harris treats sexual intercourse and procreation as if they’re two easily separable things, but that ignores the fundamental biological reality of sex. How do humans procreate (most of the time)? It’s the same act in both cases.
One may respond that it’s the same material act, but with different intentions or a different purpose. Even so, that calls Harris’ attempt to separate out two separate issues of autonomy into question. One’s body is “used” in the same way for sexual intercourse, whether or not the consequences of the use are the same. (Sidenote: anyone else have a problem with describing sex as “using” someone else’s body?)
The biological reality is that — often — sex produces babies. That’s how most of us came to be. Alongside unity and pleasure, procreation is one of the fundamental natural purposes of sex. This isn’t a moral idea — it’s just biology. Procreation is linked to sexual intercourse at such a basic and fundamental level that you can’t consent to the “use” of your body for sexual intercourse without consenting to the use of your body for procreation; sexual intercourse is a fundamentally procreative act.
Objection: A lack of intent does not imply a lack of consent
This objection is related to the first. Harris seems to imply that a lack of intent means a lack of consent, but this is not the way that informed consent works. Informed consent implies that one also consents to the risks of a given activity, the foreseen unintended consequences.
As long as one is informed that pregnancy is a potential result of sexual intercourse (basic knowledge of the birds and bees), pregnancy is a foreseen — albeit potentially unintended — consequence of sexual intercourse. Therefore, although pregnancy is not intended in this case, “consent to the use of one’s body for procreation” has clearly been provided by Jack, unless he somehow doesn’t realize that that’s how (most) babies are made.
A pregnancy can obviously be unintended, but consenting to sexual intercourse along with an understanding of the potential consequences (namely, pregnancy) ought to imply a certain assumption of risk.
An obligation towards the mother or her unborn child would not be a violation of Jack’s autonomy, unless you ignore the fundamental biological link between sex and pregnancy and the assumption of risk implicit in informed consent.
Objections to the Fourth Premise
Objection: A lack of consent does not imply a lack of obligation
Our society tends to believe that parents have an ethical and legal obligation towards their children. Once Jane is pregnant, Jack is already a father because he already has a child. If Jack had left Jane when the child was three years old, most would agree that he has an ethical and legal obligation to the mother in supporting their child. If Jack had never intended to have a child, that would be unfortunate and difficult for him and it would certainly complicate the situation, but it would not relieve him of that obligation.
This is actually quite important if we consider the case of rape. If a woman is raped (clearly, she has neither consented to the use of her body for sex or procreation), does she have any obligation to the child? She may have no legal obligation in many jurisdictions nowadays (a separate issue), but does she have any ethical obligation? If we believe that parents have an obligation towards their children, and the unborn is human, then the rape victim is already a parent and abortion would mean the intentional killing of her child.
Rape is a profoundly evil act, and pregnancy only makes an incredibly tragic situation that much more complicated… but abortion is also a profoundly evil act. The method of conception (and whether or not there was any intent or consent) does not change the reality of what the unborn is.
Thus, a lack of consent may well be a violation of autonomy (as rape clearly demonstrates), but that’s a separate issue from whether or not there is any responsibility regarding the offspring. A parent’s obligation not to neglect his or her child isn’t based on how that child came to be, but on what that child is.
Abortion Empowers No One
The problem is that few people will support these objections. Attacks on the second premise are extremely controversial. When you criticize the idea that sex and procreation can be neatly separated, you get accused of trying to “punish” women for having sex. The problem is that the separation isn’t based on morality, but on biology. To assert a clean separation is not to challenge traditional moral values or “heteronormativity,” but to challenge biology.
And for all those times that the challenge fails, our society promotes abortion to women as the “solution.” Abortion is necessary for people to maintain this separation in spite of reality.
But if you leave Harris’ argument uncontested so as not to compromise “the pursuit of casual sex,” abortion is a bandage applied to a fabric of social relationships built on a weak foundation — it’s not about “choice” or empowering women.
When having children became an elective rather than a natural consequence of sex, responsibility for children shifted wholly to women. Men instinctively understood that if conception could be undone, then so could their responsibility for being involved with the children women chose not to terminate.
When Jack can wash his hands of the procreative aspects of sex, Jane is left alone to deal with her pregnancy. Abortion isn’t a free choice when a woman feels as if her back is up against a wall.
Abortion empowers no one.