Tag Archives: legal

Unborn Children: Not Parasites, Not Trespassers

Introduction

“To hold individuals guilty of crimes they couldn’t have committed is a moral obscenity.”–Robert Gore

Within the abortion debate, unborn children are often called either parasites or trespassers, sometimes both. This is nothing more than an attempt to marginalize and dehumanize the unborn child in order to justify a position or ideology.

This article seeks to prove in a straight-forward manner that this is wrong. The terminology is incorrect. I use dictionary definitions to show that the common usage of both terms eliminates any possibility that they might be correctly applied to an unborn child. Furthermore, I draw on common sense and my own understanding of moral justice in order to reach a conclusion–that it is impossible for the unborn child to be either a parasite or a trespasser. To call them that, as Robert Gore has stated, is a moral obscenity.


“… given that the fetus is unwanted, it is in effect a trespasser or a parasite.”Walter Block/Roy Whitehead[i]

“What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body? This is the nub of the issue: the absolute right of every person and hence every woman, to the ownership of her own body. What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.– Murray Rothbard [ii]

Unfortunately, these men have based their claims on “property rights”, i.e., the woman owns her own body (property) and can do with it whatever she wishes. (I have dealt with this issue elsewhere. See here.) The “right” of an unborn baby girl to own her body is discarded out of hand. They assert that property rights are all that matter. Morality (the sense of right and wrong) does not enter the picture. In the case of abortion on demand, legally defined rights have become more important than what is right.

To be fair, both Walter Block and Murray Rothbard have done an absolutely phenomenal amount of work for the cause of individual liberty which cannot be dismissed or denigrated. In this case, though, they are simply wrong.


Section I: Parasites: Biological and Social

The number of types of parasites can be numbered–there are two. Only two. Biological and social. See here[iii] for a typical definition of the term. Unborn children are neither.

Parasites (biological) are not a part of the host. They do not derive from it and are not related to it. In fact, they are a species which is completely different from the host. They draw nourishment and sustenance out of the host, debilitating and weakening it. They give nothing back. If they grow and/or reproduce unchecked, they can, and sometimes do, literally kill the host. A tapeworm is a parasite. Mistletoe is a parasite. Lice and bedbugs are parasites. An unborn baby is not.

Unborn fetuses DO draw nourishment and sustenance from the woman, via the umbilical cord, but they are not a threat to the woman under normal circumstances. They are not a different species. They are related to the host (mother). They derive half their DNA from her, but they are not [iv] a part of her. The only time that a woman is threatened by the fetus is due to an ectopic pregnancy or (perhaps) other complications brought on during the pregnancy.

Biologically speaking, a fetus cannot be a parasite.

Parasites (social) are another sort entirely. They are human beings who prey on other human beings. They may or may not be related. They may attach exclusively to one person or draw from more than one. They have a desire to be supported by others and have their wants and needs filled by them. They know their current (preferred) lifestyle would suffer if the parasite/host attachment were severed for any reason. One common characteristic of social parasites is the selfish belief that other human beings exist for their benefit. They are users of people and seek to control them for personal gain. Taken to an extreme, this becomes an “all for me, none for you” attitude and way of life. In an unrelated but not entirely irrelevant article, Brandon Smith describes it like this.

“This attitude can also be seen in the common actions of narcissistic sociopaths, who have no qualms about conning or exploiting people around them as resources, feeding off others like parasites.” [v]

To some degree, all of us are social parasites. Everyone, at one time or another in his life, uses someone else for personal gain or benefit. This type of action, for most of us, tends to be minimized as we grow older and wiser and it can be personally overcome to a large degree. Many people never outgrow it. Some never try.

It is commonly accepted that unborn children do not have any consciousness of their own until they have developed sufficiently [vi], probably not until very late in the pregnancy. How can a fetus (which is not aware of its situation and surroundings) use someone else selfishly? How can someone who has not attained the characteristics of self-consciousness and deliberate action be a parasite? Quite simply, she can’t. She does not knowingly use anyone else for her benefit. She knows nothing except what has always been, i.e., the womb and a state of total dependence. She will never know anything differently until and unless she is born and (gradually, progressively) taught to become independent.

In the timeline of the unborn baby/newborn baby/small child/teenager/adult, the individual progresses from complete dependence on her mother to a state of some degree of independence. If she is considered a parasite before birth, at what point does she cease to be one? What is the point in a person’s life where she does not need or depend on anyone else? When does a person stop “taking” and start “giving”? Everyone takes more at the beginning, but eventually we learn (hopefully) to give more than we take. It can be argued that we live on a sliding scale, one end being total dependence, the other total independence. The only choice we have is where we live on that scale and that is determined through a lifetime of personal change and our interactions with other people, either positive or negative, with varying degrees of success.


Section II: Trespassing: A Legal View of Trespass [vii]

Murray Rothbard [viii], a major contributor to modern libertarian thought, stresses the “legality” of abortion in the quote below. He appeals to law to validate his claim that a woman has an absolute right to have an abortion.

“What we are trying to establish here is not the morality of abortion (which may or may not be moral on other grounds), but its legality, i.e., the absolute right of the mother to have an abortion” [ix]

Well, all right, then. Let’s look at this from a legal perspective. I argue that a fetus is not a trespasser based on the legal aspect of what it means to be a trespasser. I state firmly and unequivocally that a fetus CANNOT be a trespasser because there is no legal justification for the attribute. Trespassing is a criminal act, punishable by law! A fetus cannot be tried and convicted, by law, for the crime of trespass, therefore, it follows that a fetus is not a trespasser.

I will go further. Saddling a fetus with the pejorative label of “trespasser” or “parasite” is intentionally dissembling. It is similar to calling the fetus “a clump of cells”, “fetal tissue”, “product of conception”, “blob of protoplasm”, or “uterine content” and seeks to obfuscate the real meaning of what an abortion is–the deliberate killing of an innocent, unborn human being. Block and Rothbard do so, in my opinion, not so much to promote abortion, but more properly to defend their own definition of “property rights”. In this respect, they have taken their stated philosophy and beliefs to the logical end–regardless of the damage caused.

Dictionary definitions of ‘trespasser’ can be seen here [x],

“One who has committed trespass; one who unlawfully enters or intrudes upon another’s land, or unlawfully and forcibly takes another’s personal property.”

and here [xi].

“In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional.”

In these descriptions, the emphasis is on unlawful entry, forceful taking, and intentional action. This is about as far from a newly conceived zygote or a four-month old fetus as anything could get. Notice also that the trespasser is described as a “person”, but the Supreme Court case of Roe v. Wade determined that unborn children are not persons until they are viable, at the very least. If fetuses are not persons, they can’t be trespassers according to the definition. They can’t both be right. Which is correct?

Let’s break this down. Trespassing is a criminal act, prohibited by law and punishable under law. It is embedded into the legal code. Trespassing may be done willfully or mistakenly, but it always involves the crossing of a previously established boundary. The trespasser intrudes on someone else’s space (property) from some other location or position. If there is no transgression of boundaries, there is no trespass.

To intrude on someone’s property by mistake should not be (and usually is not) considered criminal unless damage is done to the property. More likely than not, trespassers who are confronted will remove themselves promptly, with the knowledge that behavior of that sort will not be tolerated. Trespassers who offer a sincere apology will probably be allowed to vacate the property without any further trouble and that will be the end of it. “A soft answer turns away wrath, but grievous words stir up anger.” (Proverbs 15:1) An honest, contrite confession of a mistake will go a long way in defusing a potentially violent situation.

Let’s draw a picture.

A young woman from the city visits her uncle, who lives in a heavily forested part of the country. While there, she decides to venture out and explore the wilderness. Since there are no fences or signs, she has no idea that she has left her uncle’s property and is now walking through his neighbor’s forest. The neighbor sees her, confronts her, and warns her that she is trespassing and must remove herself from the property. In response to this, she confesses her mistake, asks for direction back to her uncle’s place, and leaves without further ado.

Under this scenario, the neighbor whose property boundary was violated would likely do nothing more, unless he called the uncle and asked him to inform the niece of the property lines. Legally, he probably would not be able to make a case for the arrest and trial of a young woman who had simply made a mistake.

Intentional trespass, on the other hand, requires deliberate action and knowledge. It is done with the understanding that a boundary has been placed around the property by the rightful owner. The trespasser would have to consciously violate that boundary without regard for the will of the owner. Such a violation could and might result in a penalty being assessed against the trespasser, if the property owner was inclined to push the issue.

Suppose that this same young woman, while walking through the forest, came to a place where there was a four strand, barbed wire fence, arrow-straight and fiddle-string tight. In addition, there was a “No Trespassing” sign fastened to a fence post at fifty-foot intervals. There could be no mistaking of the intent. This would be a clear indication that she was not allowed to go any further, under penalty of law. The choice then would be hers–to obey the injunction and turn back or to willfully climb over the fence in a deliberate act of trespass, which would be considered criminal if discovered and prosecuted.

Criminal trespass simply cannot happen in the case of pregnancy, because the alleged violator, the fetus, was conceived and has always existed in the womb [xii]. It originated from within the womb. It has never been anywhere else. It has never crossed any boundary. How can something, anything, be charged with trespassing if it began within the boundaries and never crossed them? The fetus may be unwanted, but it is not a trespasser. Call it a noxious weed if you wish, but don’t call it a trespasser. Assert your right to remove weeds from your “lawn”, but don’t base your claim on trespass law.

Criminal prosecution usually takes the form of arrest, charge, hearing/trial, verdict, and penalty/release, or some variation of this process. Every person who is arrested for a crime should be advised of the charge(s) against him. Not only that, but he should be expected to understand why he has been charged and what the penalty might be if he is found guilty. Moreover, he should have a right to counsel and the opportunity to defend himself. In addition, he should be able to appeal his case to a higher authority. Or at least this is the way it’s supposed to work.

Trespass is a matter of law. It cannot be otherwise. It must be handled in a legal manner. In order to prove a case of trespass fairly, these steps (at a minimum) must be followed:

1. Charge or accusation

2. Hearing or trial

3. Evidence presented

4. Verdict pronounced

5. Penalty imposed or case dismissed.

In a case of (supposed) fetal trespass against a woman, this will not be the course of action. Consider:

1. No charges or accusations have ever been (nor will ever be) brought against the “offender” [xiii]. If they were, it would not be able to hear nor understand them.

2. There is no trial or hearing in which the fetus is given the opportunity to defend itself nor is anyone else appointed to act on its behalf. In fact, if someone else did make an attempt to speak for it, he could be charged [xiv] with a crime himself.

3. The only evidence presented at all is that the woman is known to be pregnant. There is no evidence presented to prove that the fetus actually committed any “crime” worthy of punishment.

4. The verdict is not based on objective proof beyond a shadow of doubt, but solely on the subjective decision of the woman and anyone around her who might benefit from the abortion, either financially, socially, or emotionally.

5. The penalty is carried out–execution–without any possibility of appeal.

This sort of proceeding reminds me of the poem, A Mouse’s Tale [xv] in Lewis Carroll’s tale, Alice in Wonderland [xvi].

“…I’ll be judge, I’ll be jury, said cunning old Fury. I’ll try the whole cause and condemn you to death.”

Fetal trespass is a misnomer. There is no law directly forbidding a fetus to reside in a womb or compelling it to vacate the premises. There is no law which orders a fetus to act in a certain manner regarding the violation of property boundaries. None. Nada. Nyet. Nein. There never will be. It would be the absolute height of foolishness to forbid a fetus from trespassing, at least as much as it would be to forbid a dog from pooping on a neighbor’s front lawn.

Calling an unborn child a trespasser is preposterous. In today’s social and political environment, it would be equivalent to “fake news.” Calling something what it is not in order to justify a viewpoint is not only false and misleading, it is morally reprehensible. It is blatantlyt irresponsible at best, deadly at worst.

The counter-argument might be presented that, since the fetus is not a person [xvii], legally correct criminal proceedings really don’t apply. Even in cases of non-persons becoming trespassers, however, the law still operates in the same way. Trespassing is a criminal act and must be treated that way.

Domestic animals, dogs, for instance, can and do leave their owner’s property and trespass on someone else’s. Sometimes they poop on front lawns, which is a nuisance. Sometimes they are more aggressive, e.g., digging up flower beds or killing sheep. A tree can (and sometimes does) fall across a property boundary and cause damage, for example, if it crashes through a neighbor’s garage roof.

In the case of the tree falling, someone would cut it up, clean it up, and remove it from the site. If you wanted to imagine it this way, the tree would be “punished” for its trespass.

In the case of the sheep-killing dog, the dog might be shot by the shepherd, thus “paying” for its crime. It might be imprisoned (kenneled, chained) by its owner to keep it from running wild and causing more damage. Pre-crime [xviii], so to speak.

Dogs and trees can trespass on a person’s property, but they do not understand that they do so. To them, it is a completely natural act. They know nothing else. It is futile to legally charge them with trespass, so we take the more rational step of charging their owner, requiring that he make the situation right and compensating the victim for damages caused.

Someone might claim that I have blown my case. If dogs and trees can trespass unknowingly, then so too can a fetus. This assertion collapses, however, under the same point that I made earlier–trespass cannot occur without the violation of a boundary. While dogs and trees can and do violate property boundaries, the fetus never has. Dogs and trees came across the line from some other place. The fetus arrived from nowhere and, from the very beginning, has always existed on the property.

The whole process from sexual intercourse to the realization that a woman is pregnant can be roughly compared to the appearance of alien spaceships from (seemingly) nowhere into Earth’s space without warning.

  1. We broadcast and blast radio waves into the universe non-stop, sometimes with the express purpose of catching the attention of other-worldly entities—sexual intercourse.
  2. We know that “intercourse” of this nature might result in the appearance of a spaceship into Earth’s space and time—possibility of conception and pregnancy.
  3. We understand that this appearance might have repercussions and possibly even prove fatal—pregnancy which adversely affects the health and well-being of the woman.
  4. We also understand that the appearance might produce future benefits which we can only imagine at the time—interaction with the new-born baby as it grows into a mature adult.
  5. In the event that an alien spaceship does appear, we have to make a decision either to live with it, cooperate with it, and benefit from its presence, or to use violence to blast it out of the sky in an attempt to maintain the life we prefer and have become accustomed to, regardless of the death and damage that might ensue–to abort or not to abort.

The one discrepancy in this comparison is that alien spaceships, regardless of where they originate, come from another place within the universe, or for those who are really into it, from a parallel universe. Consequently, they can, according to our code of justice, legally be charged with criminal trespass, found guilty, and “punished”. After all, it is our space! How well that might work out remains to be seen. We might find out we’re punching well above our weight.

Unborn fetuses (and this is the pivot of my argument) do not and never have come from another location. They appear out of nowhere. They do not exist before they arrive. They are “created” within the womb by the simple joining of an egg cell and a sperm cell. Before this union, there is nothing but two individual human cells. After that, there is a new human being, who has committed no crime and is completely innocent of any charge or accusation against it.


Conclusion: The End of it All

If the unborn child is not a parasite nor a trespasser, then what is she? There is only one answer left–a unique, personal, human being who has been placed, through no action, will, or desire of her own, in a vulnerable, dangerous position. She deserves all the protection that we can give her, if we are so inclined. Unfortunately, quite often, we are so NOT inclined, consequently, she ends up dead.

Greg Koukl has written what I consider to be the perfect sentiment to end this article. I couldn’t have said it any better.

“A child is not an invader, though, a parasite living off his mother. A mother’s womb is the baby’s natural environment…One trespasses when he’s not in his rightful place, but a baby developing in the womb belongs there.” [xix]


[i] Block, Walter E. and Roy Whitehead. 2005. “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian Law Review, 4 (2) 1-45

[ii] https://mises.org/sites/default/files/For%20a%20New%20Liberty%20The%20Libertarian%20Manifesto_3.pdf

[iii] https://dictionary.cambridge.org/dictionary/english/parasite. I do not agree with the dictionary’s example of a financial speculator as a parasite. My view is that financial speculators are necessary in the same sense as a wolf pack which culls out weak or sick animals, leaving the rest of the herd healthier as a result.

[iv] https://catholicvote.org/10-reasons-the-unborn-is-not-a-part-of-a-womans-body/

[v] https://www.zerohedge.com/news/2019-02-07/brandon-smith-secular-look-destructive-globalist-belief-system

[vi] https://thebrainbank.scienceblog.com/2012/12/04/what-can-science-add-to-the-abortion-debate/

[vii] I am not a legal scholar, judge, nor lawyer. I could be entirely wrong about this whole train of thought, however, I am willing to stick my neck out and stand according to what I do know and believe to be true. In this sense, I am relying on common sense and moral justice as my guides. I dare say I am right.

[viii] https://mises.org/profile/murray-n-rothbard

[ix] Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, ©1998), 98.

[x] https://thelawdictionary.org/trespasser/

[xi] https://en.wikipedia.org/wiki/Trespasser

[xii] I use the term “womb” to include the entire reproductive system of the female body.

[xiii] Martin Armstrong writes this which closely parallels what I have outlined above. “In law school, they teach you that the Due Process of Law comes from the Bible. God already knew what happened between Cain and Able. He still granted him the Due Process of Law to (1) summon him providing notice and (2) the right to be heard. We no longer allow Due Process of Law. We presume guilt and condemn people without trial.” See here.

[xiv] In the Roman Empire, families were allowed to abandon their newborn babies by leaving them in garbage dumps or dung heaps to die. The early Christians adopted the practice of picking them up and raising them if they were alive, but burying them if they had died. This became so prevalent that a law was passed making it illegal to do so.

[xv] I hadn’t read this poem in close to fifty years until I started researching this article, but I still remembered most of it. “Fury said to a mouse that he met in the house…” I wish I could have met Lewis Carroll.

[xvi] A favorite story of mine when I was growing up, as was Through the Looking Glass, also by Lewis Carroll. You can hear Grace Slick and Jefferson Airplane pay homage in their song White Rabbit. Their best song, in my opinion.

[xvii] For my view on this, see here and here.

[xviii] See the movie, Minority Report, starring Tom Cruise.

[xix] https://www.str.org/articles/unstringing-the-violinist#.XEp7os1lBPZ