The “abortion problem” and children

There is a problem area in terms of rights. This problem area is composed of the first stages of maturation of the indivudual, namely the foetal stage and the childhood stage. Two main issues are related to them – abortion and children rights. But since abortion is simply an inquiry on the rights of a foetus, we can therefore reduce the problem to one field of inquiry, that is, rights.

What rights should children have ? It is a fact that they belong to the category of human beings. However that is not the point. Why is there a problem about children at all ? Because children are dependant on adults. Because of this we get considerations of parenting and caretaking.

There is an important datum on which I base myself, a great discovery to be made in this regard. Why does the notion of consent has to be directly related to adulthood ? This is a most illogical notion. The capability to consent has to do with the person being able to grasp the issues involved, and to express his consent clearly. If those two factors are not present, we cannot say that there was conscious agreement on the part of the child, on any issue whatsoever. On the other hand, we cannot take away this right from the child for purely emotional reasons.

The foetus is a form of total dependance – it depends on the mother for its growth.

The baby is a form of almost complete dependance – he can sustain life biologically on its own, at the most basic level, but cannot survive, let alone make choices, without the parents.

The older child (between 7 and 12 years old) is a little less dependant – he can sustain his own life more successfully, and can grasp some basic issues.

The teenager is much less dependant – he has the capacity to consent to a wide range of actions and can understand a wide range of property.

The adult is completely independant – he has the capacity to survive, understand the notions of all items of property and give consent to any possible action, in theory.

So we have this phenomenon of growing independance and reasoning as the person gets older, as a general rule. The real barometer of how responsible a person can be is is not really how old that person is, but what he can do and grasp. But in terms of a practical legal system, we can only try to approximate general rules, in accordance with the knowledge of psychology. Since I am not a psychologist, I will not attempt to validate my evaluation of levels of maturity – and will leave that to more competent people.

We can resume this situation in a simple three-step gradation.

complete dependance = property
partial dependance = responsability

The word “reponsability” here indicates the responsability of the parent towards the child, to assume the rights of the child for a certain period of time. Therefore we get into the ever-moving balance of rights between cared-for and caretaker.

Of course a child could not consent to an action, evne if he can grasp the concepts and consent involved, if he does not have the right to do that action.

With this sharing of rights comes accountability. It would seem reasonable to assume that when the parents are responsible for a certain right, that they would have to pay the consequences. That is how rights work normally – the one who makes use of the right, also reaps the consequences. In this case the child may act, but the right, and therefore the accountability, is the parents’.

Someone could argue that this relation of rights to dependancy creates unusual situations. For example, what about a child who is in a temporary coma ? It would seem that his rights have to be revoked in this case. However that is not the case since what we have here is not a case of free trade. In an indirect way we are all dependant of each other (in modern society anyway), but that does not mean we have to surrender our rights to everyone else. In this case, presuming the child is in a state of trade with the hospital (or his parents, more likely), he is exchanging his livelihood for a renumeration. This is not a case of direct dependance but a case of trade – taking away his rights would be a break of contract, strictly speaking.

Another way to see the solution to this apparent paradox is by the distinction between the status of dependancy and the status of temporary incapacity. If the status of this individual at a time T is a state of complete potentiality, then whenever it is actual or not doesn’t really matter. For example, someone who *could* use his capacity of reasoning but doesn’t, does not lose his right to reasoning because he’s not using it. The acquisition of a right is not dependant on its use (although some people argue it’s rather useless to have a right without using it, but I disgress).

Note that this is not a temporal potentiality. I’m talking about present time nature.

With this revolutionary approach to pre-adult social context, what can we say about the two main questions that preoccupy us ?

The foetus, being completely dependant on the mother’s body, is a part of her body – it is not an independant being with rights. Therefore it seems logical to grant to the mother the right of abortion, since the foetus is covered under the right to self-ownership.

As for children, it would seem that we would have to give them rights progressively, as they get more and more independant. However this is impossible in practice. We need a new type of age (for example, teen-age, 12 or 14 years old) to grant capacity of consent and limited rights. This would not overly complicate matters, all the while granting to the maturation process a legal equivalent closer to reality.