Benjamin Bestgen

Abortion remains the subject of one of the most contentious social debates of the 20th and probably also the 21st century and is a topic comparatively few people feel entirely neutral about.

Only recently in December 2020, Argentina, after heavy campaigning and public protests, liberalised its stance to make abortions much more accessible to women. A few weeks later, in January 2021, Poland went the other way, legislating to make abortions almost completely illegal – likewise under heavy public protests.

Even within countries where abortion is available on request or legalised for a wide range of social, medical and economic reasons, attitudes still vary. The political mood is often reflected in the volume of bureaucracy and scrutiny a woman has to undergo before she can obtain an abortion.

Abortion triggers various issues many people are not necessarily well informed on but nevertheless feel strongly about:

• Moral status and value of a fertilised human egg/embryo/foetus/“unborn life”
• Women’s bodily autonomy and reproductive choices
• Metaphysical beliefs around when a foetus may acquire personhood
• Conceptions of motherhood, fatherhood and family
• Forced marriage, rape, incest, disabled children and pre-natal defects

This article won’t discuss these matters. Instead, I will introduce an equality-driven take on parental rights and abortions which may be interesting for lawyers to ponder, at least in jurisdictions where abortions are generally lawful.

Choosing parenthood

For centuries, men and particularly women were expected to marry and have children as part of the “natural way of life”. Contraception was hardly known, available or socially approved of. Sex before marriage was typically taboo.

Accidental pre-marital pregnancies were often covered up through more or less coerced weddings to avoid the social ramifications of pregnancy out of wedlock. A woman with an “illegitimate child” or “bastard” (a legal term) risked social ostracism and poverty, making her extremely vulnerable. Likewise, it was generally demanded that the (suspected or actual) father of the unborn child should take responsibility, assume fatherhood, legitimise the child by marrying the mother and economically provide for both.

Nowadays “bastardy” is no longer of grave concern and marriage not seen as a strict social or economic necessity. For most of us in Europe or the Anglosphere, becoming a parent is, largely, considered optional. Ideally, we procreate when we feel ready for it, found a good partner to have children with and commit ourselves to parenthood as a lifestyle choice. This voluntary approach is only a few decades old though and its rules, possibilities and challenges still something we navigate as a society.

Consenting to fatherhood

The current abortion debate focusses, understandably, mostly on women and the unborn. After all, the foetus grows in the woman’s body, she has to handle months of pregnancy, give birth and all that entails. The man’s role tends to be limited to his participation in the few minutes needed to impregnate a woman.

But philosopher Laurie Shrage observes that men, certainly in the US, are given few legal options in case of accidental pregnancy, e.g. when contraceptive methods failed or following an unplanned “heat-of-the-moment” sexual encounter. They can ask the woman to abort but if she declines and wants to keep the baby, there is little the man can do. Should she give birth and the man’s fatherhood is legally established, he will be liable for child support payments for many years.

Shrage and fellow philosopher Elizabeth Brake assert that this isn’t fair. Brake notes that feminist thinkers have rightly argued that becoming accidentally pregnant does not obligate the woman to give birth and raise the child. A woman consenting to sexual activity doesn’t imply that she also consents to pregnancy and motherhood.

Therefore, why should the law obligate the man to assume fatherhood and pay child support if he doesn’t want to be a father? A man consenting to sexual activity likewise doesn’t thereby consent to fatherhood. But the law generally forces parental – or at least financial – duties on the man if the woman decides to have the child.

Paper abortions

Philosopher Steven Hales argues that an abortion of an accidental and unwanted pregnancy is a legitimate option for a woman to make in order to avail herself of her liberty rights and secure her future:

• pregnancy and child-rearing may negatively impact her physical or mental health;
• she may not feel economically prepared;
• a child might endanger her lifestyle, personal ambitions or career-choices; or
• she doesn’t feel she is in a suitable social or political environment to have a child in.

Men also have similar concerns about how a child will impact them in the future. But while women can physically terminate the pregnancy, men, for obvious reasons, cannot. Men’s and women’s civil rights in matters of abortion are unequal, as far as the ability goes to protect future interests or exercise choice in the future obligations we assume (e.g. raising and paying for a child).

Hales acknowledges that perfect equality is probably not achievable and any reasonable concept of equality has to allow for justifiable differences. But we should aspire to treat men and women equally as best we can in any given context.

Therefore, Hales proposes that men should be given a legal option to unilaterally reject fatherhood, including all obligations that arise from it, in the same way a woman can decide to refuse motherhood by electing an abortion without the man being able to veto it.

This “right of refusal” could take the form of a contract or statutory waiver. It should, as best as possible, mirror whatever scrutiny and hurdles women may have to overcome if they exercise their “right to abortion”. It should also follow the same time-limitations: e.g. if women could only lawfully terminate until the 12th week, men can exercise their “paper abortion” likewise only up to that point.

Enacting such a right could potentially also reduce a number of child support, alimony and custody battles in court. A man needs to accept that a woman can terminate the pregnancy by opting against motherhood, even where the man would like to be a father. But with a “right of refusal”, a woman would need to accept that if she decides to keep the baby, she has to raise and pay for it alone, with no right or recourse against the man for any support or participation whatsoever.

The man could also not change his mind at a later stage and claim any kind of parental rights or access to the child when it is born. Like a woman terminating the unborn irrevocably, the “paper abortion” is just as final and irrevocable for the man.

The future

It appears unclear if “rights of refusal” will become politically acceptable any time soon. However, some countries, like Denmark and Sweden, had a degree of public debate about it in the past decade, with tacit support that the idea has merit due to its emphasis on creating a society around egalitarian principles between men and women. Like many interesting and potentially controversial debates which may affect our future society, lawyers are well positioned and invited to participate.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.