June 25, 2022

About consent and pregnancy

About consent and pregnancy

By Hendrik van der Breggen


Here is a popular pro-choice argument on the abortion issue:

An impregnated female has the right to consent to having sex without consenting to becoming pregnant.



This argument doesn’t seem to make sense. This argument requires believing that it’s meaningful to give consent to the beginning of a causal chain of events and do so without consenting to the causal effects—the risks of which one admits and knows are real and yet goes on to risk. 

It’s like saying I have a right to consent to lighting a match in a room full of gasoline without consenting to the room catching on fire. Or I have a right to consent to smoking without consenting to getting cancer. That’s odd, surely. 

And this oddness counts against this pro-choice argument. 

The point is this: If you consent to action X and X has known consequences (or a known high risk of consequences) then basically you are consenting to accepting responsibility for those (risked) consequences. As in gambling at Las Vegas, when you decide to gamble you risk your money and are responsible for your possible losses, so too in initiating a causal chain of events you risk the outcome of the causal consequences—and are responsible for them even if you hoped they wouldn’t occur. Again: Claiming one isn’t consenting to the consequences is odd—and this oddness counts against the above argument. 

One may not want to get pregnant and one may take precautions against getting pregnant, but because no precaution is foolproof—and we know this—by engaging in sexual intercourse one takes the risk of pregnancy for which one is responsible.

If the outcome is a person with the right to life, then killing that person via abortion is not morally permissible. 

For further thought: 

Jen Westmoreland and Josh Brahm, Is Consent to Sex Consent to Pregnancy?, Equal Rights Institute, June 14, 2022 (54 minute video). 

Hendrik van der Breggen, Untangling Popular Pro-Choice Arguments: Critical Thinking About Abortion (Amazon/KDP, 2020).

Hendrik van der Breggen, PhD, is a retired philosophy professor, formerly at Providence University College, Manitoba, Canada.


Alex said...

Hi Prof Henrik, can you respond to this argument.
Some writers, especially in the Thomistic tradition, insist that the fetus, even from
the very beginning of its existence, in one important sense actually does have a capacity
for mental states – and indeed for knowledge, rational activity, friendship, etc. (e.g.,
Beckwith 2007: 142; Finnis 2013; Lee 2004, 2010: 6, 52; Lee and George 2005; cf.
Kaczor 2011: 30).9 According to these theorists, the fetus has already from the start a
“radical” or “root” capacity for such features, roughly in the sense of having a potential
for them: the fetus has the right sort of nature to eventually acquire these features, so
long as nothing prevents it from doing so. This is much in the same way that an
acorn has a root capacity to grow branches and leaves (cf. Beckwith 2013: 342).
Although this view raises large issues that we cannot do justice to in this article, we
are inclined to say that it does not, even if correct, undermine our strategy. For while
we find somewhat misleading the broad use of the term ‘capacity’ involved in this
view, it seems to us that we can accept it without jeopardizing the substance of our pro-
posal. For the important thing is, of course, whether having a mere root capacity for the
relevant features is sufficient for occupying some level on the pertinent scale. It seems to
us that it is not. As indicated earlier, even if an ordinary computer were to turn out to
have a root capacity for positive and negative wealth, or virtue and vice, intuitively it
would still need a more substantially developed capacity in order to occupy any level
on the wealth scale, or virtue scale. (Presumably, there will be borderline cases between
having a mere root capacity and having a sufficiently developed capacity – but the com-
puter seems to be a clear instance of the former.) Similarly, an early fetus apparently has
a root capacity for positive and negative wealth, and for virtue and vice. Nevertheless, it
is still plausibly not richer than some of us and poorer than most, or more virtuous than
a bad person and less virtuous than a good person. If this is right, surely the same holds
for well-being

Hendrik van der Breggen said...

Hi Alex. The argument you’ve set out looks like it’s a copy of a portion of a larger article. I’m not sure what the “proposal” is, nor what was “indicated earlier.” And who is “we”? And what is “our strategy”? Maybe if you’d let me know where I could find the article, I could take a look at it and address its argument (when time permits).

On another note, I think what you’ve written/copied doesn’t address the issue of consent, which is what my article is about.

Alex said...

Sure here it is

Alex said...

Here's David Boonin response to the Responsibility Objection

Alex said...

Hi Professor Henrik
Did you go through the material I gave? I'm waiting for your response

Hendrik van der Breggen said...

Hi Alex,

I haven't gone through the material yet. I've had a few other matters that called for my attention in recent days. I'll turn my gaze to the material when time permits.


Hendrik van der Breggen said...

Hi Alex,

Because my blog post is about the issue of consent and pregnancy, I would like to focus on that issue. So in the following comments I’ll merely look at pro-choice philosopher David Boonin’s thoughts on the matter.

(At a later time, if time permits, I’ll take a look at Ekendahl and Johansson’s article “Does Abortion Harm the Fetus?” which you posted. For the moment, I’ll just say this: I can’t help but wonder if the question would be more accurately stated as follows: Does suffocation, poisoning, and/or dismemberment harm the fetus? I suspect the answer is yes.)

Boonin’s article (for which you provide a link) is over 20 years old, so, to avoid rehashing 20+ years of philosophical discussion, in what follows I will merely and briefly discuss Boonin’s more recent views about consent and responsibility as he presents them in his 2019 book Beyond Roe: Why Abortion Should be Legal—Even if the Fetus is a Person (Oxford University Press).

I’ll set out a sketch of Boonin’s arguments (from chapters 12 and 13 of Boonin’s book) and then offer a brief critique from Jen Westmoreland (from her video that I linked to at the bottom of my blog article) plus a short criticism from a couple other pro-life apologists (Tim Barnett and Josh Brahm). I think Boonin’s argument fails, and I think what follows will provide enough food for thought for understanding why I think this.

Hendrik van der Breggen said...

Sketch of Boonin’s argument concerning consent

Boonin addresses tacit consent, since some pro-lifers argue that in the case of voluntary consensual sex acts there is, in the absence of explicit consent, tacit (implicit or understood) consent to getting pregnant. Boonin argues that in the case of voluntary consensual sex acts there is no tacit consent for pregnancy.

According to Boonin, tacit consent occurs via widely-understood social conventions. To help us understand tacit consent, Boonin sets out examples of situations in which tacit consent occurs via social conventions:

- By ordering lasagna in a restaurant you tacitly agree to pay, even though you don’t make an explicit agreement.
- By leaving a tip in a restaurant you tacitly agree to have the waiter/waitress keep it.
- By taking a taxi you tacitly agree to pay your fare.
- By raising your hand in an auction you tacitly agree to purchase an item.
- By placing a bet with gambling chips at a casino you tacitly agree to pay if you lose.

But, according to Boonin, we can easily imagine social situations in which the social conventions are different for the above examples, and there is no tacit consent in those situations:

- The restaurant provides free food (say, paid by government), so by ordering lasagna one isn’t providing tacit consent.
- No tipping may be the rule in a society, so there’s no tacit agreement that the money you’ve left on the table is for the server.
- The taxi is free, so there’s no tacit consent to pay.
- In an auction, explicit agreement in writing may be the convention, so in such a situation no tacit consent occurs by raising one’s hand.
- One can imagine that in a casino explicit agreement in writing may be the requirement.

Boonin: “Your voluntary act can count as tacitly consenting to do something, then, only if it takes place in a social context where doing the act is widely recognized as a way of intentionally communicating your agreement to do it.” (Boonin, Beyond Roe, 65.) In ordering food, tipping, etc., there are widely recognized social conventions, and thus tacit consent, but not so in the act of having sex, according to Boonin.

Boonin: “[H]aving sex is clearly not a convention we’ve come up with to allow women to indicate, without have to say so explicitly, that they agree to give a fetus the right to remain in their uterus. Having sex simply isn’t a means of communication in the way that raising your hand or leaving money or chips on a table is.” (Boonin, Beyond Roe, 65.)

Boonin: “There’s clearly no such convention in the case of [having consensual sex].” (Boonin, Beyond Roe, 66.)

So consent to sex isn’t consent to pregnancy, according to Boonin.

Hendrik van der Breggen said...

Critique of Boonin’s argument concerning consent

Jen Westmoreland shows that Boonin’s argument is problematic. Westmoreland does this when she discusses philosopher Margaret Little’s argument, which is pretty much the same as Boonin’s argument (see 42:00 and following in the video I posted below my blog article.)

Yes, there are social conventions that vary. Some social conventions are relative to the society in which they occur and they are different in different societies or social settings. This is true of Boonin’s examples concerning the ordering of food, tipping, etc. So far, so good.

But is it true that there are no established and widely recognized conventions in the case of consensual sex? Now, keep in mind we’re talking about consenting adults (not about children or mentally handicapped people). And keep in mind that in the contemporary world we know much about sex and biology and reproduction. And keep in mind that we know that human biological life begins when human sperm and human egg unite. And keep in mind that we know that informed consent to having sex presumes having such knowledge, even if known-to-be fallible condoms, etc., are used.

Westmoreland calls the claim, that there’s no settled social meaning of sexual intercourse and what it leads to if one consents to doing it, bogus.

Why? Because, according to Westmoreland, everyone knows how babies are made (again, keep in mind that we’re talking about consenting adults here, and keep in mind all the other points I’ve listed above).This fact of biology—that sexual intercourse can lead causally to pregnancy—has been known throughout history and across cultures. And the act of sexual intercourse and its intimate involvement of the male and female sex organs that are ordered biologically for (among other things) the causal initiation of pregnancy—this is known universally by adults. Heck, even Joseph and Mary (the mother of Jesus) knew this 2,000 years ago!

So, as I argue in my post, consent to sex is like consent to starting (or knowingly risking the start of) a casual chain of events the outcome of which is foreseeable—and to deny this is odd. I would even go so far as to say the denial is just plain dopey, given our current knowledge of biology and the causal connections between sex and pregnancy. I also think that consent to starting such a knowingly foreseeable causal chain of events makes one responsible (more on this below).

So I am in agreement with Westmoreland, whose argument (against Little) I take to be a good criticism of Boonin’s view concerning consent.

Hendrik van der Breggen said...

Boonin’s argument concerning responsibility

Boonin, in a subsequent chapter in his book Beyond Roe, tries to argue against parental responsibility for the fetus if one engages in sex. To do this he distinguishes between a couple of responsibility principles and then sets out a thought experiment that even he admits is “weird” (Boonin’s word). According to Boonis, one isn’t responsible for the fetus and his/her needs.

I’ll save a lot of space here and simply point out (1) it turns out that Boonin’s crucial responsibility principle (what Boonin calls responsibility principle #1) has a problematic shortcoming (more on this below); and (2) I agree with Boonin that his thought experiment is weird.

(Boonin’s thought experiment concerns two cousins David Shimp and Robert McFall; McFall needs Shimp’s bone marrow after Shimp saves McFall from choking to death by giving McFall a Heimlich maneuver; but it turns out that by applying the Heimlich maneuver to McFall, Shimp exposes McFall to chemicals that are on Shimp’s hands, and these chemicals cause McFall to suffer from aplastic anemia, and this means McFall needs Shimp’s bone marrow to survive; but, or so Boonin wishes us to think, Shimp shouldn’t be forced to give his bone marrow to McFall; and so, according to Boonin, we can see that mothers shouldn’t be forced to provide support for fetuses and thus can be aborted. Read Boonin’s chapter on responsibility for greater understanding.)

Hendrik van der Breggen said...

Hendrik’s reply

First, Boonin’s responsibility principle (responsibility principle #1) needs revision so it will better reflect the situation of known parental obligations to children. Boonin’s principle is stated as follows: “if it’s true that if you hadn’t done what you did, the needy person wouldn’t exist now, then you’re responsible for providing them with the assistance they need.” But the principle should read as follows (capitalized words are my addition): “if it’s true that if you hadn’t done what you did, the needy person WHOM YOU HAVE CREATED AND WHO IS YOUR SON/ DAUGHTER AND NEEDS YOU FOR AT LEAST NINE MONTHS wouldn’t exist now, then you’re responsible for providing them with the assistance they need.” In other words, Boonin’s responsibility principle (without my capitalized words) ignores the very issue at hand, that is, that we have special moral obligations to our children, of which one is not to kill them via, say, suffocation, poisoning, and/or dismemberment, which is what abortion does.

Second, I think Boonin’s admittedly weird thought experiment (about Shimp and McFall) can be countered and overcome by a better and less weird thought experiment, that is, a thought experiment that more accurately captures the full goings-on with sex and pregnancy (which Boonin’s weird Shimp and McFall scenario misses) and which shows that one is in fact responsible.

(I learned of this thought experiment from a discussion between two pro-life apologists: Tim Barnett and Josh Brahm, “Responding to ‘My Body, My Choice,” Stand To Reason, November 17, 2021.)

Enter: The baby-making machine.

On this thought experiment (slightly embellished here by me) there is a baby-making machine such that you can choose to push a button on the baby-making machine for pleasure if you wish to do so (so the act is consensual); this action (because of the causal ordering of the machine) possibly creates an inherently needy child/ person, i.e., your inherently needy son/daughter (even though you’ve set the dial to a probability of nearly zero); this pre-natal child will be needy (dependent on you) for nine months (at least); and you know the risks of the possible causal outcome (physical effects/ consequences) of pushing the button.

Surely, you are in fact responsible if you decide to push the button. Why? Because creating a child—your child—involves and incurs the parental moral obligation to care for that child (for at least nine months) according to the revised responsibility principle (that I’ve set out with my addition of some capitalized words): “if it’s true that if you hadn’t done what you did, the needy person WHOM YOU HAVE CREATED AND WHO IS YOUR SON/ DAUGHTER AND NEEDS YOU FOR AT LEAST NINE MONTHS wouldn’t exist now, then you’re responsible for providing them with the assistance they need.”

In other words, parental obligations to children are special (unlike the weird and contorted scenario of the two adult men Shimp and McFall upon which Boonin rests his case) and we know this. And, surely, the baby-making machine thought experiment captures and accurately represents the salient relevant moral features of sex and pregnancy.

Boonin’s responsibility principle #1 (without my capitalized words) doesn’t take into account known parental obligations to their children; rather it bakes into his outcome a neglect of parental obligation to their children.

I hope my above comments are helpful.