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Real0ne -> RE: abortion - the law (3/23/2010 2:16:47 AM)
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quote:
ORIGINAL: LadyEllen
In the now long running Abortion thread (the one with the poll), the question of the legal position was brought up by RO as to the nature of consensual sexual intercourse and from there the nature of unwanted pregnancy resulting and thence abortion.
I would lean toward the ramifications or consequences incidental to the nature unwanted pregnancy where abortion is not the result but a decisive path.
RO said that this was a matter of the law of contract but has regrettably not chosen to expand on that as invited. It is plain to me that the law of contract is not applicable due to the lack of intention to create legal relations, even if it were possible to say that there is offer, acceptance and consideration. Even then it is clear that any contract applicable was promise for promise fulfilled by the consideration being exchanged.
Well anytime you interact with another you now have "lawful" relations which have moral basis.
Thats not correct, you can have a trust such that I can give you my bat and ball and merely say do not break it, where the standing presumption is that I want it back and upon your acceptance you now agreed to my terms.
We could look to tort for an answer along the lines of the woman suffering damage due to becoming pregnant by the man, but again this is unsatisfactory since establishing fault (and contributory fault), damage and thus rights and liabilities and remedy should be so difficult as to render it an unsuitable avenue for exploration let alone solution.
Cant get damage when you are aware of the possible outcome. So its unsuitable because of knowing entry.
It may be argued in equity that a resulting and/or constructive trust comes about when a woman falls pregnant unintentionally, whereby the woman becomes trustee as well as beneficiary whilst the man is also a beneficiary but not a trustee.
No it cant quite work that way. You would need something other than a purely initial act. If you are both the trustee and beneficiary you have no trust beyond responsibility for the creation incident to the action that now requires a contract or recontract. I suppose if the female were a 5 year old who had no reason to understand that a pregnancy would occur that would be a different matter.
Here an abortion decided on unilaterally by the woman should represent a breach of trust by which the man loses his share of the interest, for which remedies are available as well as (in theory) injunctions to prevent loss.
That is the problem where one person is denied their interest.
This may seem a suitable avenue to go down, though it is unlikely any court would provide remedy by injunction and unclear as to what loss the man should have suffered when
a) he had no intention of the pregnancy coming about
b) the subject matter passed by him in the trust (semen in the first instance) was clearly either given as a gift, or (using RO's contract law proposal), consideration for a contract
Well they do not suffer a loss but a gain of a baby and the maintenance therein, not much different than owning property in that you need to maintain it.
The process in which the pregnancy took place is irrelevant because she donated the egg, so they both gifted in those terms.
I am not sure why you chose injunction since the act is already a done deal?
Kids playing with pipe bombs have no intention of blowing their pals fingers off either but yet they do and if of age are liable regardless of the intention to share in the fun of the experiment.
In trust you have res and that would be the noun version of the word intercourse.
Now if he was supposed to wear a condom and did not and she was unaware or she was supposed to be on something that prevented pregnancy and failed to do so that changes things and would be cause for a breach.
All in all it seems the civil law can offer no real insight and we are left with the question as it relates to criminal law, wherein should abortion be illegal then it is the doctor who should be a murderer, with the woman being culpable as accessory for though she killed no one (if we take the view that abortion is murder) she did procure the murder and may therefore stand alongside the doctor.
Civil "law of color" is nothing more than "lets do this as a matter of convenience" based on the way we think it should be while at the same time circumvents due process of the accused. (even though the courts would "claim" due process was served.
Any so called law does not create the insight but the reverse. Law is often nothing more than here is how we will handle it and is not necessarily a function of whats fair or equitable.
Well abortion in terms of murder would be a conspiracy to murder as they both took part willfully with full knowledge of the results.
That is why it is an absolute atrocity for the state to require any doctor to perform such a procedure against his will simply because the state issues a permission to operate within their commercial venue.
In this scenario however we risk making murderers of doctors for all manners of death caused or occasioned by medical treatment, including the withdrawal of medical treatment. This is because abortion is a medical procedure which is provided for the benefit of the mother's health (or on account of serious defect in the child), which the doctor must provide in order to comply with his oath in such circumstances.
Well that is an unfortunate fact of life now that we are at a point where we can keep someone alive literally without a functioning brain.
Well not really, as it was mentioned on one of these threads that its extremely rare in which thelife of the mother is at risk which is the only real justification and anything else is a matter of convenience.
Without that oath to protect life the doctor could let anyone die for any reason, hence and adult abortion without recourse.
This brings us to the question of whether abortion is ever provided, as some profess, as a lifestyle choice by women. Clearly it is not. It is rather always a matter of preserving or protecting the health of the mother, whether this be her physical or mental health, though in the latter case it is arguable as to whether abortion assists in that aim or produces problems of its own.
Welfare women around here have been known to use abortion as a means of contraception.
From this then it is clear that abortion is a sometimes necessary medical procedure and as such it is something that ought not be regarded as a moral issue in quite the way its opponents portray. And from there one may safely conclude that it is a matter between a woman and her doctor as to what medical treatment she receives, with no reason to suppose that any other person ought to have influence, still less a veto or power of compulsion to the contrary.
E
LE anything that deals with life especially that of hum life is a moral issue. How can you get around that? After all it is living it is a product of the your dna et al, ie its not a carrot or potato.
Well thats not true because the doctor was not party to the original contract and the woman would then be recontracting without the original parties which is a breach and trespass.
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