Star Ford

Essays on lots of things since 1989.

Legal arguments on birth

on 2016 September 11

When does life begin? At conception, or nine weeks thereafter? When the baby is born? Or maybe after it gets its first master’s degree? Or never? Personally I think it’s never. Life reorganizes; it does not begin.

I saw a nun praying outside Planned Parenthood the other day. My urge was to pray with her, not against her. Instead of wondering what her thoughts were, or what she was for or against, I felt the power of her upholding that life which does not begin. It felt like there were not two opposing sides at that moment; her energy felt unifying.

1. Abortion

I grew up with the semantically twisted stance that killing babies before birth was not really “killing”. But when my heart softened about “abortion” (a sanitized word), I admitted it was killing, and I couldn’t be “pro-death”. Instead I wanted to uphold mother and child, to protect and strengthen all of us. When we sit to feel and consider abortion in the abstract, we need to honor the strengths and mourn the losses of the mothers. We should not be stuffing down the feelings of loss simply because we hold a political view of choice. Politics has a way of making abstract ethics central and extreme, and suppressing mercy for each individual circumstance. We should use the word “killing” because that is honest, but using that word doesn’t make it a blanket wrong.

In abortion debates, a key point is often overlooked, which is the difference in motive between killing a fetus and killing a child or adult. In murder cases, there is some form of power motive – self-defense, revenge, or covering ones tracks in another crime, for example. But in abortion, it is not about power-over; it’s only about not being willing or able to provide. So while it is killing cells and taking part of life, it can also be seen as the passive act of declining to give life. In other areas of law where actively taking something away is a crime, declining to give that thing is passive and therefore is not a crime.

The left’s stance on abortion feels incomplete because it treats the dependent unborn life as nothing in the eyes of the law, not worthy of any legal protection at all. On the other hand, the far right’s stance that a zygote at conception deserves full legal protection feels ridiculous. I’m not sure there has to be any blanket rule for everyone, but at early stages, the fetus seems to deserve no protection, and at some later point the baby deserves full legal protection. Maybe that point is at 24 weeks, or at birth – I don’t feel I can know when that time is. Some cultures might consider those full protections to be applicable only a year or more after birth, and accordingly infanticide could be a lesser crime than the murder of an older person. There has to be a between-time when the fetus deserves increasing degrees of partial protection, and simultaneously the mother has decreasing levels of authority to kill it. We should not have the debate over when is the exact moment in development when abortion should suddenly become illegal; there is no such moment scientifically or spiritually.

When it comes to practical laws and processes on the matter, I’d lean toward having the mother decide in all cases, knowing that situations are too varied and personal to be subject to absolutes, and that power motives hardly ever exist. But I have nagging concerns about certain people. There are occasionally cases where mothers in dire circumstances abandon unwanted newborns in dumpsters, and of course everyone is horrified and calls for punishment. But some of those horrified people would be totally fine if she had killed the baby two days earlier before its birth. Their nonsensical reaction is based on an imaginary line where life supposedly begins. I feel that if we’re going to rush to save the newborn, we need to value the almost-born at approximately the same level, but maybe slightly less. Thus we need to prevent that kind of person from getting to that point in the first place; but if we fail to prevent it, we cannot just say it is OK.

2. Custody

I have a related viewpoint on birth politics which is probably very unpopular but I’ve held to it for a long time and it really feels right. My idea is that the person carrying and birthing should have 100% custody, and it should be up to her whether and when she wants to share rights and responsibilities with the person who provided the complementary gamete (usually the father), and/or with the person who provided the egg in the case of an implant. Or she could share with any willing person, such as an unmarried partner or relative. In simple terms, this erases fathers’ rights.

Here’s how it would work. Let’s say you give birth and at the time of birth you’re in a stable marriage and you and your husband want to share equally. Then at that point (only after birth) you give him shared custody. On the other hand if you’re in a questionable relationship or are just not quite ready for marriage, then you might wait a year or two to see how things go, and then give him shared custody.

The rights and responsibilities go together: you’re not allowed to demand responsibility (such as money) without giving up rights, and likewise the non-birth parent cannot get rights without also accepting responsibilities. Once custody is given, it can’t be taken back unless both people agree. The permanence of it is important; once a parent starts putting in energy to raise a child, it eventually surpasses the effort of carrying and birthing the baby, so it makes sense that a non-birth parent who is actually parenting should have equal rights that can’t be revoked.

In more complex cases, this rule simplifies a lot of things. Suppose you are in a same-sex long term relationship and want to use a sperm donor but you want your wife to be the second parent. No problem: the donor has no automatic rights; you as the birth mother get to decide who is the other parent. Every combination of non-traditional sex roles and orientations is covered.

Another complex case is when the father does not want any involvement but you want him to help provide. In that case you can either convince him to accept responsibility with the rights, or take neither. It doesn’t make sense to force custody on someone, because we all need to have the ultimate right to relinquish a child if we cannot care for it, for the sake of the child.

A final example is if neither parent wants the child, but there is someone else you want to give it to who is willing. Then you can give that person custody under the same rule, and subsequently renounce custody yourself; that is effectively an adoption to the unrelated person.


Those for whom equality of the sexes is an abstract ideal of utmost importance might argue against this because they say it takes two people to make a baby and thus they must both take responsibility. But really, it takes two people just to give genetic information; virtually all the work of making the baby is done by only one person using that information as a starting point. Therefore the person carrying the child to term is naturally the primary parent at the time of birth; the other person did not play an “equal” part by any reasonable definition of the word.

Ultimately the effect of this rule for mothers is that by getting pregnant, they MUST retain rights and responsibilities (unless and until they go through an adoption process to relinquish them). The effect for fathers is that by getting someone else pregnant, they risk that they MIGHT not have any rights at all, but on the other hand they don’t start out with any legal obligations. I think this reflects reality better than the current laws, bit it still has a kind of balance built into it.

There are cultural factors working strongly against this idea, and I’m aware the idea will go nowhere because of these factors. One of those factors is the idea of women and men being two groups vying for power in relation to each other. Men could get really disturbed about the way fathers get less authority in this system, even if they themselves are not harmed. I suspect they might look out for the interests of other men. But the rule isn’t about the equality of men and women; it’s about the inequality of birthing (huge task) versus donating a gamete (small task), regardless of the sex or gender of the people involved.

The other cultural factor is the idea that genetic lineage is the basis of a parent-child relationship, or that it makes it more pure, or that it matters more than actual care-taking. In the extreme it allows men to disappear and then reappear years later and demand custody rights. I find this idea very patriarchal and wrong. Anyone who accepts sustained responsibility for caring for a child is its parent from the child’s point of view. All the bonding is based on that, and the laws concerning dependency and rights and obligations should also follow from that.

3. Violation

Some 40-odd percent of the population can be pregnant at all, and a big chunk of them get pregnant through force or manipulation. Of those, some cannot kill the fetus (because it’s wrong, to them) but also cannot support it. Under the framework as I’ve written it, the father (possibly a rapist, or just an ex-boyfriend) is off the hook for this child and is never required to accept custody. This might feel like a “sexist” situation – the mother gets the full burden and the father can ignore it. But really it gives the mother the most power. She can abort or give birth without anyone’s consent, and she can decide to either be a single parent or co-parent with any willing person of her choosing. She’s not under any obligation to the father. Under current laws, by contrast, she has to ask the court to take custody away from the father; which means she starts in a position of powerlessness and only gets power if the court grants it.

If the father committed a rape, then he should “pay” through the criminal justice system, not through custody or child support. The fact that the pregnancy started without consent is a separate issue that should not involve the baby in any way. It may be that in a restorative justice framework, the perpetrator would have to make payments to the mother, which is like child support in some ways, but in that case the payments are only for the damages done, and they don’t give him any rights.

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