From my post at The Libertarian Standard:
In my How We Come To Own Ourselves, Mises Daily (Sep. 7, 2006), I argue:
the libertarian could argue that the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs.1 And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point. This last argument is, to my mind, the most attractive, but it is also probably the least likely to be accepted by most libertarians, who generally seem opposed to positive obligations, even if they are incurred as the result of one’s actions. Rothbard, for example, puts forward several objections to such an approach.
Now, I did not explicitly apply this to the case of abortion, but it should be clear that this approach could imply that parental obligations exist that obligate the parent not to abort the fetus, at least after a certain point, at least in normal, non-life-threatening, cases. (I lean toward this view: abortion is increasingly immoral, at least in the typical case, starting from the point of conception; and at some point in the second or third trimester, when the fetus has developed enough to be said to “be a person” (to have a developed brain and other organs), abortion would be infanticide, or tantamount thereto. I would still oppose state law against abortion even in the last trimester, however, partly because I oppose the state, and partly because enforcement of such a law would be inherently dangerous and invasive.)
So I found the following interesting. In a recent Noodlecast podcast, Objectivist Diana Hsieh notes some of her fellow Objectivists disagree with her on abortion. She notes, in particular, that her fellow co-blogger, the pro-IP Greg Perkins, has written Abortion Rights and Parental Obligations. In this piece, Perkins argues, similar to me, that you can assume positive, parental obligations, even “implicitly” by your actions; and that at a certain point of “viability” the fetus has personhood and rights, and may not be aborted (at least in the normal case). I disagree with some aspects and nuances of his argument, but … interesting nonetheless.
See also my post Objectivist Hate Fest, discussing the pro-abortion comments of some Objectivists who were opposed to women with Down Syndrome fetuses carrying them to term–they believe there is a moral obligation to abort–to “squelch”–an “unhealthy fetus”–and that support of these mothers is the “worship of retardation.”
See also Doris Gordon’s site, Libertarians for Life, an anti-abortion libertarian group.
Parental obligations to children are pretty obvious, and obviously necessary for society to exist. See Herbert Spencer’s “Law of Life” in his Principles of Ethics. Your explanation is one that I had not come across in as coherent a form as this. Usually libertarians try the contractual approach, as you say, which not only doesn’t work, but flies in the face of our experience of real contracts.
I will no doubt post on this at my site soon. Thanks for the clarity.
- KOL130 | Bad Quaker: Kinsella and Tucker on Abortion, … (May 24, 2014)
- Objectivist Hate Fest (July 14, 2009)
- Liberals and Abortion on TV and Films (Sept. 25, 2009)
- A Conservative Argument for Abortion (July 26, 2002)’
See also my comments on Matt Gilliland’s post Abortion and Estoppel (Sept. 8, 2014), including:
Interesting suggestion. A few initial thoughts.
(by the way for further elaboration on estoppel and related ideas, see my more-concise New Rationalist Directions in Libertarian Rights Theory and Argumentation Ethics and Liberty: A Concise Guide — both at https://www.stephankinsella.com/llw/)
First, “We’ll also need to assume that the fetus is a human with rights” — I think that once we assume this, the whole issue becomes easier, but then, this is one of the important issues to be proved. I was never persuaded of the evictionist view that even if the fetus has rights, it’s still a trespasser and may be evicted; I think the fetus is invited. I’ve argued that in a few places, e.g. How We Come To Own Ourselves. http://www.mises.org/daily/2291
If I am not mistaken, Walter has objected to variations on my argument by assuming that the positive obligation to a fetus is “contractual,” and this is impossible since the fetus does not exist as a rights-bearing entity capable of having contractual rights, at the time of conception. I think this critique is flawed since the positive obligation is not a contractual one, it is a result of causal action on the part of the obligor. If I plant a landmine in a public path and 10 years later it kills a 5 year old boy who did not exist at the time I planted it, I am still responsible. Etc.
As for the estoppel argument you advance–quite interesting. I had never thought of it this way quite before. One problem with it is that it is based on the presupposition that fetuses have rights, but let’s let that pass. Another problem with it is that it seems to me odd to view the fetus as a trespasser, as it was usually invited by the mom’s behavior. But let that pass. Antoher possible problem with it is that if the mother is alive, maybe it does not show that she was a trespassper on her mother–it only means that she is alive, so her mother did not exercise her right to evict, i.e. she “forgave” her the trespass. That does not mean the mother has to forgive her own child. (Just thinking out loud here)
Unless, that is, you assume the grandmother forgave her daughter her own trespass, *on the condition that* she forgive her own children, and impose similar conditions, and so on. I made a similar argument in the How We Come to Own Ourselves piece:
“Fourth, it is not difficult to envision a scenario in which most lines of descent, at some point, become permanently “liberated” or “manumitted” by the benevolent actions of a key ancestor. Great-great-great-Grand-dad manumits his child on the condition that he free his issue, and so on. In this way, eventually all or most lines of descent become freed by some distant act in the past of a benevolent ancestor. But still, this leaves open the possibility that some might not; and, in any event, it admits that at some points in time, child-slavery exists and is permissible.”
I believe I have pointed out or argued somewhere, but cannot offhand remember where–something similar to your argument–something that draws on Hoppe’s argumentation ethics. That is that self-ownership is an undeniable presupposition of all argumentative discourse and justification, precisely because the person arguing that his opponent has no rights, is himself assuming rights in his own body. For A to argue that he has a right to harm or own B, A has to implicitly argue that A is himself is a self-owner. But if he grants himself those rights, it is presumably for some general reason related to his nature–particularizable claims are not permissible in discourse–and B shares that nature too, as a fellow human. that is, A by asserting ownership of B, asserts ownership of himself, and thus has to admit B also has rights–so that his assertion of ownership is self-contradictoyr.
The parallel i see is this. We would agree that there are property rights and that A may not invade the borders of B’s property–he may not trespass. But we have to admit of “de minimus” effects that do not rise to the level of an interfernce. For example I may not shine a laser beam into your window, but I can light a candle which emits photos over your land. I may not spew noxious chemicals onto your land, but I may light a cigarette on my front porch even though a couple molecules land on your property. The reason we have to permit such de minimus actions is b/c anyone objecting to it is also committing them, so has no basis to complain; he is estopped.
So, the parallel I have thought of before in the abortion case is similar to what you are getting at here, I think: for you to be alive and complian about the fetus in your stomach, some previous ancestor had to forgive you for this, etc. I think this is similar to your argument, and similar to the one I was getting at in the article quoted above.
My thoughts for now.
Update: See also Łukasz Dominiak, “Libertarianism and Obligatory Child Support” [PDF], Athenæum: Polish Political Science Studies vol. 48 (2015), pp. 90–106:
Abstract: In the present paper, I investigate the relation between the institution of obligatory child support and libertarianism, particularly a libertarian theory of distributive justice. I demonstrate that the institution of obligatory child support is incompatible with the classical libertarian theory of distributive justice as represented by Murray N. Rothbard, Hans-Hermann Hoppe, Walter Block, Stephan Kinsella or Robert Nozick. However, the main research question that I address in the paper is: What construal of the libertarian theory of distributive justice is the institution of obligatory child support compatible with? I hypothesise that obligatory child support is compatible with the libertarian theory of distributive justice interpreted in terms of the “finders-creators ethic”, as represented by Israel M. Kirzner. To inquire into the main research problem, I employ the method of reflective equilibrium.
- Update: See also Ilya Somin, “A Broader Perspective on “My Body, My Choice”,” Volokh Conspiracy (June 30, 2022): “libertarians and many others argue that we don’t necessarily have a moral duty to save lives whenever we can, especially not one that should be enforced by the government. Similarly, Anglo-American law holds there is no liability if you walk by a baby drowning in a lake and choose not to save her (though some philosophers and legal scholars believe there should be). But, if a fetus has a right to life comparable to that of a baby, then abortion is a stronger case for regulation than the “drowning baby” scenario. In most, though not all, cases (rape is an obvious exception) the pregnant woman had a major role in putting the fetus in a position of jeopardy in the first place, by voluntarily choosing to have unprotected sex.  This makes the situation very different from one where the drowning baby was in peril for reasons having nothing to do with the person who might be able to save it. If you threw the baby in the water, or he ended up there through your negligence, you do indeed have a legal or moral duty to save him.” [↩]