I’ve proposed in a prior post that a neutral jurist determines a law to be imputed to a fetus or to an infant, just as in other cases. The jurist, naturally, does this job without the benefit of any words from the fetus or infant. The imputed law is based on the best available indirect evidence, including the adopted laws of the parties and the prevailing norms in the child’s community. Although the jurist exercises discretion in imputing law to the mute infant, she does so subject to the objective constraints of discoverable evidence. If a jurist rules against the weight of the evidence, she puts her own reputation at stake.

To say that abortion by the mother is always prohibited,  or conversely, is always permissible, is contrary to personal sovereignty at the heart of voluntary law. Any absolute rule on the legal status of a fetus would necessarily be based on either an arbitrary diktat of some ruler, or on a definition of “person” that falls outside of voluntary law’s foundational definition of personhood. A person is, according to voluntary law, a corporeal, mortal entity capable at some prior relevant time of language and legal discourse (among other things). Infants, fetuses, fertilized human cells, and the severely mentally disabled from birth fall into a special category that might be called “potential persons who have not yet (and may never) become capable of adopting and following their own laws, yet might become capable within their lifetimes.” For brevity, we may generally refer to such living beings as “dependent potential persons” or “dependent potentials,” as a general class including infants, young children and those born with severe mental disabilities. The fetus is a prime example of this class.

It might fairly be asked how imputing a law to a fetus that permits it to be killed without legal repercussions can ever be considered a voluntary choice of the fetus. As a living being, all fetuses (and zygotes and fertilized eggs) must be presumed to share the common instinct of all life: survival. Therefore to say that the fetus consents to its own self-destruction is to contradict its evident will to survive, and impose a law not of its own choosing. This argument is logical on its face, but consent should not be confused with legal consequences.  We may be sure that no fetus or infant ever consents to its own destruction, and do not need to pretend otherwise.  The question is what to do with those legally competent persons who, by some intentional or negligent act, have caused the life of the fetus to be taken away.  There is no particular logic that requires that all such intentional or negligent acts must have legal consequences.  On the contrary, both moral and economic considerations teach that sometimes the intentional killing of a fetus, however tragic, is morally justified, as when to preserve the life of the mother.   From an economic standpoint, preservation of life generally requires wholesale destruction of its own seeds. Nature teaches us this in many instances, for example with egg-laying animals that may lay dozens or hundreds of eggs, of which few survive to adulthood. Even mammalian species often bear litters, of which few survive under normal conditions. The economics of life dictate that not every individual can survive to adulthood, and in times of great scarcity, difficult choices must sometimes be made.

In the face of these moral and economic realities, no sustainable society can enforce laws in which every individual package of DNA capable of growing naturally or artificially into a person is owed a duty of nurture. If such laws were to be enforced, there could be no legal abandonment or disposal of inseminated eggs. Mothers could be held liable for the violation of rights of miscarried fetuses. No natural society could consistently observe such an absolute rule. Exceptions to the duty to nurture have always been be made for one reason or another, and would always be made in every conceivable society. It is commonplace in every human society for dependent potential persons to be neglected or actively suppressed in the interests of sustainability of the social order on which the as-yet unformed persons depend. So it should be evident that elevating the universal survival instinct to the status of a socially-recognized law cannot be consistently or fairly realized; in actuality it is impossible because of inevitable clashes between fecundity and scarcity. Customs, rules, and laws regarding treatment of infants and fetuses have historically varied with the times and circumstances.

On the other hand, civil society also depends on reciprocal respect for the sanctity of life, which is threatened when the rights of dependent potential persons to live are callously disregarded. The statist approach to this tension is to proclaim one rule concerning practices such as abortion, infanticide and euthanasia, however arbitrary or divisive, or unevenly enforced. The voluntary law approach is more granular, based on the individual social circumstances of the dependent potential person, and therefore not arbitrary or inviting of uneven enforcement. The task of the jurist is to identify the law that the dependent person would most likely adopt, were it in the position of a caretaker or guardian. Were the jurist to simply ask what law comports with the dependent potential person’s will to live, no practical answer is possible, as argued above. The only legal inquiry with a practical answer is, essentially, is “does the applicable law of the parties under TROTWET depart from the prevailing norms to such degree that some other law should be applied?” In other words, if the dependent potential person had grown up in the social context of its caretaker or guardian, what law would it have adopted?

In the case of a fetus and most infants, there is no closer person to the fetus than the mother. Absent extraordinary circumstances, the mother’s law should be the law applied, when harm to a fetus is litigated. If deference to the mother’s law prevails, legal remedies to prevent or penalize abortion will very seldom be recognized unless the mother’s law provides for it. In rare cases, a mother’s law might be disregarded or modified if contrary to clear community norms, objectively determined. For example, if mother who has adopted a permissible adoption law moves and lives as a long-term member of a community in which nearly everyone has adopted a law that penalizes abortion, she may naturally experience difficulty in finding a credible jurist willing to impute her law to her fetus. A competent jurist might find that had her fetus grown up in the community in which she has chosen to live, as an adult it would have chosen a different law. The mother would therefore be unwise to have an abortion there, as legal results would not be predictable. Conversely, if a mother adopting a law that penalizes abortion chooses to live as a long-term member of a community whose members recognize no penalty for abortion, and after some sufficient time willingly aborts her fetus, legal penalties are unlikely to be enforced.

The imputed law of a fetus does not come into play in the case of legal actions against a doctor who performs an abortion, or by such a doctor against any attacker bearing an anti-abortion motive. Such controversies are decided under the laws of the parties. The fetus will not generally be a party to actions by a non-family complainant, for reasons explained in the following paragraph. When the fetus is not itself a party, the law that might be imputed to the fetus is not relevant to a choice of law analysis in these cases. Hypothetical disputes between an abortion provider and a third party “defender of fetuses” have been considered in an earlier post.

Imputed fetal law will not commonly be at issue, because disputes in which a fetus is a party will be rare. Something akin to the notion of “standing” will naturally limit legal actions by unrelated third party guardians. That limit “akin to standing” is the natural limit on the right to receive damages on behalf of an injured potential dependent person. Damages for ordinary murder will normally (assuming most victims prefer it) be payable to the estate of the murdered, and from the estate to the heirs designated by the law of the victim. In the case of abortion, the closest next of kin and likely imputed heirs will usually be the parents, who can be trusted to not sue themselves for damages. An unrelated third person will not stand to receive damages: under any reasonable rule, what reason is there to reward a stranger for the misfortune of a fetus?

There are some cases in which a rightful claim to damages arising from abortion might be enforced. For example, one parent might sue another to prevent an abortion or collect damages for one performed. Imputation of fetal law might arise in special circumstances such as disputes between family members, as when a related-party guardian sues a mother for damages on behalf of an aborted fetus, or in the unusual case where an unrelated guardian learns of another’s intent to abort, sues for an injunction to prevent an abortion from being performed. For example, a person who has paid a surrogate mother might (or might not) have a legitimate interest in seeing a viable pregnancy carried to term. Such claimants might sometimes seek imputation of a law to the fetus if the mother’s law is unfavorable to their cause, and the context clearly supports the imputation of some other law.

Cases that arise after abortion are analogous to litigation on behalf of deceased victims. The parties to the action are the victim and whomever the guardian is seeking damages from, for example, from the mother or from a doctor who performed the abortion. Where suit is brought on behalf of the fetus by an heir or legally potential caretaker, the applicable law is that of the fetus only, which may be imputed based on the circumstances. TROTWET does not apply, when law is imputed to a dependent potential person, as explained in a previous post. The neutral jurist will ask: were the fetus in the position of the mother, what law would the fetus hold? Absent other evidence, usually this imputed law will be the law of the mother, provided the mother has not recently changed her law merely for convenience’s sake. However, if the mother’s law is a rare outlier in a place where nearly all other mothers do not freely permit abortion, and where the mother plans to reside indefinitely, a jurist might conclude that more likely than not, were the fetus to grow to become a parent, it would likewise recognize a prohibition on abortion. In these very rare cases, a guardian might, for example, obtain a ruling requiring that the mother give birth and either care for the child or give it up for adoption. If a legal action is filed post-abortion, damages might be paid to the guardian or to some designated fund, for example, to a charity that represents the rights of the unborn, or that finds homes for orphaned children. Actual outcomes are likely to be highly varied and tailored to the context at hand, based on the voluntary law applied.

For emotional issues such as abortion or euthanasia, it is possible that some jurists may always impute a fetal or infant’s law with consequences for performing an abortion or infanticide, while others might always find abortions or infanticides non-actionable if performed with the mother’s consent, subject perhaps to other conditions. The approach suggested for imputing a law to the fetus provides a way to distinguish between mere consistency by happenstance, and unacceptable bias. If a jurist always rules one way despite hearing cases with different mothers’ laws, absent extenuating circumstances the jurist is plainly biased. The credibility and livelihood of any jurist who hears a large number of abortion cases and consistently rules one way regardless of the evidence at hand would quickly be destroyed. Any rulings tainted by that jurist would be rendered unenforceable, in any community that values neutrality in due process of law.

It might be feared that communities in which juristic neutrality is not valued might come to exist. Suppose, for example, a community is intolerant of jurists who are unwilling to rule one way or another, in the sense that the rulings of any jurist who rules against community norms are practically unenforceable. Widespread enforcement bias might sometimes lead to results contrary to basic justice under voluntary law. However, absent concentration of capital and political power such as states enable, maintaining enforcement biases contrary to reason and justice over large areas for long periods of time will not be possible. If there is a sufficient market for justice of one flavor or another, providers will spring up to meet it.

It can fairly be asked whether providing jurists with the power to impute law to fetuses and other potential persons grants too much power to the jurist. Does relying on community standard bring back the state in another, more subtle guise? No, because there is no actual “standard” outside of a consensus between jurists of good reputation. In fact the opposite problem of disagreement between equally reputable jurists will be more commonplace. Such non-uniformity, if intractable despite good faith efforts, may be evidence that the supposed community standard is not clear enough to support a legal ruling. The potential person will therefore have its rights disposed of under the more usual tool of TROTWET applied to the laws of the parties, or not at all.

Suppose, for example, that the father of a fetus sues the mother for an injunction to prevent an abortion. A first jurist holds that community standards require the pregnancy to be carried to term, under the circumstances at hand. The mother appeals, bringing the case before a second jurist. The second jurist finds there is no community standard regarding abortion, and rules that under the mother’s law the abortion cannot be prevented. If the jurists are of similar reputation, enforcers willing to enforce the first jurist’s ruling will be hard or impossible to find. Reputable enforcers will not want to risk a claim of damages based on the second jurist’s ruling. Although the power to impute a law under limited circumstances grants discretion to a jurist, such discretion cannot be exercised absent a very compelling reason that would be clear to every reputable jurist available to hear the case. Thus, the power is merely a sort of check against loathsome conduct by caregivers, and cannot function as a tool for leveraging judicial influence beyond the constraints of personal sovereignty.

Once a child is born, the adopted laws of other parties to litigation may be given greater weight, as the infant is no longer dependent solely on the mother for survival. In any event, controversies over abortion are no longer possible, once the baby is born. Although repugnant to most modern cultures, infanticide is not unknown in present or historical societies, especially of infants born with severe genetic defects. The legal questions under voluntary law are not much different than abortion, with the important difference that the infant is capable of surviving independently without care for a considerable period of time. Social norms would provide to an abandoned infant a law requiring some reasonable duty to provide care, even if parents abandoning an infant somehow lacked such a law. The standard of what is “reasonable” under the circumstances will vary based on context. For example, what is reasonable in New York City or Omaha may differ from what is reasonable in isolated, resource constrained societies, for example, aboriginal Amazonians or a small colony on the moon. Infant abandonment has been considered in the previous post.

Other cases that touch on the legal rights of dependent potential persons may include abuse, euthanasia, competing caregivers, probate and right to inherit, and actions by or against a legal estate of the dependent potential person. To determine what law to apply, the jurist first determines whether or not the legal interests of the dependent potential person are at the heart of the case. Essentially, the jurist determines whether a claim based on harm to the dependent person, or a claim for or against a property interest of the dependent potential person is at stake. If so, the jurist first determines and imputes a voluntary law to the dependent potential person, and then applies the imputed law. If no such claim is at stake, the jurist applies TROTWET to laws of the parties. Thus, the dependent potential is a party in cases of abuse, infanticide, euthanasia, or the infant’s property rights.

The potential person is not necessarily a party in cases of competing caregivers (e.g., a custody dispute), absent an allegation of abuse. Therefore TROTWET applied between the competing caregivers determines the outcome. The weaker law in a custody dispute is like antecedent basis in property law: the law with the most stringent antecedents to a claim of custody wins. The jurist may evaluate stringency based on some community standard. For example, suppose a father’s law states that sole custody should be awarded to the parent most capable of providing economic support, whereas the mother’s law states that custody should be awarded to the parent who spends the most time personally caring for the child. We can hope that such disputes would be very unlikely because all responsible parents will adopt mutually agreeable laws providing for shared custody in the best interests of a child, before parenting a child together. Nonetheless, some children are conceived and borne without due forethought, and just such children are more likely than others to become subjects of custody disputes.

How is a jurist to determine the weakest of competing custody laws? Which antecedent is more “stringent”: providing economic support, or providing personal care? The child needs both types of support, and both require roughly equivalent measures of exertion. If both parents have demonstrated support for the welfare of the child, a sage jurist might declare a “tie” and help the dueling parents work out a shared custody arrangement. If one of the parents has been negligent, it little matters which law is applied, because under either law, the custody will be awarded to the sole supportive parent. Where the custodial claim is spurious, it might easily be recognized as such with or without application of a comparative principle such as TROTWET. A wise jurist does not seek perfect compliance to any idealized mathematical model for applying voluntary law, “stringency” included, nor seek to play logical games for their own sake. Instead, the wise jurist seeks to do justice within a framework that respects the personal sovereignties of the parties and of the dependent potential person involved in the dispute more than rules imposed from the outside. Concepts such as “stringency” are suggested here as guides to realizing underlying principles of justice in specific circumstances, and not as infallible laws applicable in all circumstances. Where these concepts provide no clear answer, or provide a clearly unjust answer, the ruling should be made on the basis of more pertinent and illuminating criteria.

The case of euthanasia of a once-capable dependent differs from the case of the dependent potential person. The case of a mercy killing would be judged under the applicable law of the one killed, as with any other case involving two parties. It will be almost guaranteed, however, that the person performing the killing will have adopted a law that permits assisted suicide or perhaps mercy killing in limited conditions. For example, killing a person with the permission of the caretaker, or by the caretaker, of a chronically uncommunicative dependent in a medically incurable state with an extremely low chance of recovery, might not be regarding as a cause for any action. For TROTWET to excuse such mercy killing, it will be important that the rule is written as positive law and not as an affirmative defense, as has been noted.

A person opposed to mercy-killing should therefore appoint a caretaker who is also opposed to mercy killing, to avoid a hastened but merciful demise. But what if the killer’s law does not require the consent of the dependent’s chosen caretaker? Such a person would be unnecessarily inviting legal action by offended caretakers. Mercy killers operating without consent would not normally exist, because it would be more expedient for them to pursue the occupation of mercy killing with caretakers’ consents to avoid legal and extra-legal risks.

Supposing, however that the mercy killer has an uncanny knack for selecting suitable victims against caretakers’ wishes, would there be any legal recourse? The bold mercy killer would inevitably face charges of ordinary murder from angry caretakers.  If the killer had failed to adopt a law against ordinary murder, he would quickly wind up dead at the hands of an aggrieved caretaker. Unless, of course, every one of the caretakers lacked any basis for showing that the killer had acted beyond the authority of his own reasonable mercy-killing law. In which case, the killer’s aptitude for selecting suitable victims would be uncanny indeed.

What if the mercy killer acts under an unreasonable mercy-killing law? Such a killer faces several risks. For one, a jurist might hold that the unreasonable mercy-killing defense is an affirmative defense, which will not be applied under TROTWET. Second, by publicly adopting an odious law, the killer shows himself to be a monster, losing friends and making enemies. Finally, the killer risks being mercy-killed unreasonably by any other person, if his law is deemed to be a positive law, under principles of TROTWET as have previously been explained.

Intertwined voluntary law societies obviously cannot and should not be expected to provide one uniform resolution to divisive and difficult social issues. These societies will instead permit experimentation, transparency and above all, acceptance of conflicting beliefs on difficult moral and legal questions that fit within its foundational limits. Abortion, infanticide and euthanasia provide examples of such difficult questions, which are fully capable of resolution within voluntary frameworks. In the case of the laws to be applied when harms to dependent potential persons are litigated, voluntary law provides a framework for dispute resolution that is both considerate of the practical realities of sustainable societies, and deeply rooted in respect for the life and self-sovereignty of every society member, present and potential. Voluntary law can do this without contradicting the essential meaning of a “person” as one who is capable of acting intentionally and deliberately with knowledge of articulated laws governing social conduct.

* * *

Photo credit to Suparna Sinha

Some rights reserved under Creative Commons License