The first time I encountered the argument that there exist implicit contracts between mothers and their fetuses that make it so the mothers do not have the right to evict the fetuses from their bodies was when Mark Stoval made the argument in his post, “Murray Rothbard and I Disagreed on Abortion and Child Abandonment.”
I recently encountered the argument again in Jakub Wisniewski’s essay, “Response to Block on Abortion, Round Three,” and felt the need to respond more clearly, since I still do not believe the argument succeeds. Wisniewski writes:
[Walter] Block tries to show the supposed untenability of my reliance on the principle of pacta sunt servanda on the grounds that “at the time of intercourse (…) there is no one for the voluntarily pregnant woman to have a contract with!” True, but why should we treat intercourse rather than conception as the moment at which the relevant, binding decisions take place? since, obviously enough, no contract (even an implicit one) can be made with the fetus before it comes into existence, it seems only natural to think of the moment at which it comes into existence–i.e., conception–as the moment at which the mother, who voluntarily invites a new potential human being into her womb (i.e., voluntarily allows it to appear there), makes an implicit contract with it. Block’s attempt to portray intercourse as the relevant point of focus appears to involve a significant mischaracterization of the situation.
But the mother does not necessarily “voluntarily invite a new potential human being into her womb (i.e., voluntarily allow it to appear there)”, even if she did have consensual intercourse. At the moment of conception and perhaps the moment right before conception, the mother may be thinking, “Oh no, there are sperm cells and an egg cell inside me. I hope they don’t fuse and form a human being because I don’t want a human inside me. If I could do something to prevent a human from appearing inside me I would, but it is out of my control whether the sperm and egg fuse together or not.”
It’s clear that she’s not inviting a human inside her (i.e. voluntarily allowing it to appear inside her) since she is explicitly stating that she doesn’t want the sperm and egg to fuse together (i.e. she doesn’t want a human to appear inside her) and since she can’t control whether or not the sperm and egg happen to fuse together and cause a human to appear anyway.
So I disagree with Wisniewski’s position that whenever a woman has consensual intercourse and gets pregnant, she makes an implicit contract at the time of conception with the new human in which she agrees to carry the fetus to term.
Allow me to make the argument again in the form of a hypothetical conversation between Wisniewski and a woman for the sake of clarifying the argument:
Woman: I recently voluntarily allowed some sperm cells into my body. Currently they are moving around and there is a chance that one of them will fuse with an egg cell and form a new human being. There is nothing I can do to prevent one of them from fusing with an egg cell causing a new human being to form. If a sperm and egg do fuse together forming a new human, I will evict the human from my body.
Wisniewski: But that would be unjust to evict the human from your body.
Woman: Why would it be unjust?
Wisniewski: Because you would have formed an implicit contract with the human in which you agreed not to evict it from your body.
Woman: When would I have made this contract?
Wisniewski: At the moment of conception.
Woman: But I am saying right now that I don’t want the human to appear inside me and that I don’t agree to let it stay inside me if it happens to appear. And soon, when the moment of conception arrives (assuming it does arrive), my will won’t be any different. So how can you say that I would make an implicit contract with those terms if I am explicitly stating now that I do not agree to the terms of the contract and if at the time you say the implicit contract is made I am still explicitly stating that I do not agree to the terms of the contract?
Wisniewski: That’s a good question. Maybe my argument is mistaken. I think I might have assumed that the fact that you consensually had intercourse means that you would later (at the moment of conception) agree to have the human appear inside you. But now that you point out that it does not make sense to say that a person makes an implicit contract if that person is explicitly stating (at the time that the alleged implicit contract is made) that they don’t agree with the terms of the contract, I realize that this was a false assumption.
So in summary, I disagree with Wisniewski’s position that an implicit contract between the mother and new human obliging the mother to carry the fetus to term is made at the time of conception.
However, I am not sure that I fully agree with Walter Block. In Wisniewski’s essay, “A Critque of Block on Abortion and Child Abandonment,” he writes:
Further, he [Block] denies that the voluntariness of the pregnancy obliges the woman to carry the fetus to term; such an obligation could stem only from there being an implicit contract between the two, and Block denies the existence of any such contract on the ground that one cannot consent (even implicitly) to any decision made before one came into being.
While I agree with Block that no such contract (even an implicit one) between the mother and fetus exists (as I argued above), I disagree with Block in that I don’t think that such an obligation for the woman to carry the fetus to term could only stem from a contract between the mother and fetus.
For example, could such an obligation not also stem from a contract between the mother and father? The father could say, “I will not have intercourse with you unless you contractually agree that if you get pregnant as a result then you will carry the fetus to term (unless doing so threatens your own life, etc.).”
If such a contract is legitimate, this would not mean that all evictions should be illegal, because it would not necessarily be the case that all fathers and mothers would make such a contract. However, for those possibly-soon-to-be-fathers concerned about eviction, they could make contracts like this with their partners and if their partners ended up becoming pregnant they would not have the right to evict their fetuses.