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Article Excerpt
Introduction
My purpose in this paper is to offer two arguments for the conclusion that in many instances there is a moral obligation for fathers (or perhaps society at large) to provide pregnant women with monetary compensation. The first raises issues primarily concerned with distributive justice and pregnancy. Pregnancy involves a number of costs, and it is unjust that women should be forced to bear these alone. The second argument uses the generally accepted premise that parents should share the financial burden of raising their offspring. Since the financial onus of raising children begins at conception, so too should paternal financial assistance.
1. Maternity Compensation and the Costs of Gestation
To introduce the first argument it will be helpful to note that there are at least two ways in which one might question the moral permissibility of anti-abortion laws. There is what we might think of as the "liberty" question: Should there be laws restricting when (or if) women may obtain an abortion? Jurisdictions that answer in the affirmative employ antiabortion legislation to restrict women's access to abortion services. Here we should understand "anti-abortion legislation" in a wide sense as: "any law that makes it illegal for a woman to obtain an abortion for any reason at some time during a pregnancy." Conceptually, and as a matter of practice, such legislation falls on a continuum in terms of how restrictive or permissive it is. The most restrictive legislation says that abortion for any reason any time during pregnancy (even in cases of rape or when the woman's life is at risk) (1) is illegal, whereas more liberal legislation might prohibit abortions only at a later stage in a pregnancy (e.g., during the third trimester). All such legislation has one thing in common: it says that there are some circumstances in which fetuses must be saved against a woman's wishes. In effect, then, the liberty question asks how restrictive or permissive anti-abortion legislation ought to be. Obviously, the liberty question is at the center of the political and philosophical dispute often conducted under the "pro-life" and the "pro-choice" banners.
In my opinion, a much overlooked issue is what we might think of as the "distributive question": how should the burdens of compliance with anti-abortion laws be distributed? In response to this question, my initial argument will be that if legislation demands that fetuses be brought to term, then justice demands that mothers alone should not bear the burden of compliance with the law, and the best means available to ensure justice is to financially compensate expectant mothers. Since present antiabortion legislation does not require maternity compensation, our current laws are unjust. I will expand this line of thought toward the end of this section to argue that compensation is appropriate in many cases, even in absence of anti-abortion laws. That is, although the distributive justice issues of pregnancy are perhaps clearest in instances in which there are anti-abortion laws, nevertheless, questions about how to distribute the costs of gestation can be raised independently of anti-abortion legislation.
Before pursuing this line of argument I think it is worth pointing out that the distributive question is neutral on the liberty question. That is, endorsing the idea of maternity compensation does not prejudge the issue of whether there ought to be anti-abortion laws. Consider the "extreme conservative" position that maintains that abortions should never be permitted by law--even in cases of rape and when the mother's life is at risk. Holding this view is consistent with the proposal to institute maternity compensation: a proponent might say (for example) that the life of the fetus always outweighs the interests of the mother, but that the mother should be compensated for the usurpation of her interests. The "extreme liberal" position maintains that there ought not be any laws restricting when women can have an abortion. Advocates of this view can countenance maternity compensation, at least in a qualified manner. The thought here would be that while such restrictions on women's liberty are wrong, at least until legislation is repealed, women should be compensated. As a parallel, one might hold the position that a country should never send its soldiers overseas to fight in foreign wars. However, so long as soldiers are sent, they are entitled to compensation while they fight and if they suffer injury. In principle, then, it is possible for conservatives and liberals to agree to this much on the compensation issue: if there are anti-abortion laws then there ought to be maternity compensation.
The distributive problem that arises from existing anti-abortion laws can be illustrated with an admittedly somewhat bizarre thought experiment. Imagine a world somewhat similar to our own, but people there have a strong instinctual urge to drive. For those of us who hate driving--especially in bumper-to-bumper traffic during rush hour--this may be hard to imagine. But there you have it: denizens of Driver World just can't get enough of driving. In order to allow as many as possible to gratify this urge, all vehicles have two sets of driving controls: two steering wheels, two brakes and gas pedals, and so on, such that it is possible to drive the car from both front seats. We should imagine their vehicles as similar to our driver-education vehicles, except that both sets of controls equally control the vehicle. (At least some driver-education vehicles we use allow the instructor's controls to override that of the learner--not so for the typical car in Driver World). So, driving in Driver World allows for twice the driving fun, as both persons in the front seat can enjoy the feel of the steering wheel in their hands and the accelerator under foot. This seemingly equitable arrangement belies a more sinister side to their world. As difficult as it is to believe, whenever there is an accident that involves a man and woman driving a single vehicle, the law in Driver World stipulates that women are completely responsible and must bear the full penalty prescribed by the law. If it is a small fender-bender in a parking lot, the woman must pay the full cost of the repair; if it is a serious accident where there is loss of life and criminal charges are laid, it is the woman driver who must lose her driver's license and go to jail. Women, then, face restrictions on their liberty ranging from fewer financial resources at their discretion (because of financial costs associated with accidents), loss of their driving privileges, and even the potential loss of freedom entailed by jail time. Not surprisingly, men are perhaps not as careful in their driving as women. After all, if there is an accident, men can simply whistle and walk away.
Legislation in Driver World creates a severe injustice. Specifically, this arrangement violates the general principle that people should be treated equally by and under the law. If women are held accountable, then men too should take responsibility for obeying the rules of the road, being attentive at the wheel, making sure the vehicle is in proper working condition, and so on. After all, if both have agreed to drive the vehicle then it seems both should be equally responsible. (Remember we are thinking about cases in which both the man and the woman are licensed drivers who have consented to drive the vehicle.) In these circumstances it seems that the laws that prescribe rules for those operating a vehicle should apply equally to all those involved in the operation of the vehicle. So, the principle that everyone should be treated equally by and under the law is violated because women are unfairly burdened with the full responsibility of compliance with driving legislation. Undeniably, there is a clear distributive problem in Driver World: justice demands that culpability should be shared in a situation in which both a man and woman are driving a single vehicle. Accordingly, legislation in Driver World should be amended such that men and women share equally the burden of complying with the safety concerns of driving legislation.
Of course the point about injustice does not apply simply because it is women that are not treated equally under the law. If legislation in Driver World instead said that when vehicles are driven by drivers of different races only persons of certain races are held legally responsible, this legislation too would be unjust because it fails to treat people equally under the law. Similar injustices would be perpetuated if the law prescribed that penalties would always be assessed against the shorter of the two vehicle operators, or the person whose birthday happens to be later in the year. In all of these cases, there is no reason to suppose that only one driver should be held legally responsible for the operation of the vehicle, and so such legislation violates the requirement of equal treatment under the law. So, whatever moral or legal responsibility there is for safe driving for individuals, the responsibility should be equally borne by both drivers.
A similar injustice, I want to suggest, is perpetuated by existing antiabortion legislation. Let us think for the moment about a typical case of consensual sex that results in a pregnancy in jurisdictions that have antiabortion legislation. Why are women legally responsible for the pregnancy? Of course anti-abortion legislation does not explicitly spell out an answer to this question, but a common thought considered in philosophical literature (2) says that the fetus has a right to life, and women must take responsibility because of their moral responsibility for creating the child in the first instance. Here we might imagine the law speaking to women thus: "We understand that you do not want to be pregnant at this time. However, when you consented to have sex you knew there was a chance of a pregnancy. Well, now you must take responsibility for the pregnancy, for a human life is at stake." Put in this manner, the unjustness is plain to see, for everyone knows that women do not reproduce asexually. To the extent that anti-abortion laws that seek to protect a fetus's right to life are justified by a woman's responsibility for creating the pregnancy, then the laws should apply equally to men. Otherwise, there is a violation of the principle that everyone should be treated equally by and under the law. If the law were to hold the mother and father equally accountable, then the just thing to do would be to divide pregnancy time between the father and the mother. Of course this is (biologically) impossible, but just imagine for a moment that it were possible for men to be pregnant as is the case in "Swapzee World": a world where a father and a mother can pass a developing fetus back and forth, just as easily as teenagers swap their chewing gum. Given that mothers and fathers share equal moral...
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