By Sherry Colb
In my Verdict column for this week, part 1 of a 2-part series, I take up the question whether rapists ought to be able to have parental rights to visitation with their biological children, conceived in rape. My column considers some arguments for recognizing such rights. In this space, I want to consider a related question that arises in this context as well as in some others.
The question is whether there are some circumstances under which it is better for conception not to occur. When pro-life advocates argue against abortion in the case of rape, they sometimes point to existing people who would not have been born if their mothers had had the choice and had chosen to terminate their rape-induced pregnancies. As Andrew Solomon discusses in his book, Far From the Tree, many mothers of rape-conceived children (to whom they did give birth) regularly experience an agonizing ambivalence about their offspring -- they may love the children but also feel hostility toward them, because their existence represents the living incarnation of a horribly traumatic event.
Had the rape never taken place, of course, no one -- not even pro-life advocates opposed to all abortions -- would condemn a police officer who stopped the rapist before he had the opportunity to rape his intended victim. No one would say that it was wrong to prevent the conception of someone who might later be glad, all things considered, that he or she was born.
Yet the children of rape who denounce abortion in the case of rape because its availability would have prevented their birth are, in a sense, invoking this very argument. Had their mothers been protected from one of the unwanted violations they experienced (forced pregnancy after rape, rather than the rape itself), then those children would not exist. And those children are glad that they exist and expect (rightly) to be treated as the equals of all others who exist in the world. Therefore, they appear to be saying, it is good that their mothers were compelled to bear them. They would, however, be just as non-existent now if their mothers had never been raped as they would be if their mothers had been allowed to terminate their rape-conceived pregnancies. And they would -- as anyone would -- feel hurt now if their mothers said to them, "I wish you were never born or conceived." In terms of the insult to existing people, the difference between the two may not be that significant.
This issue struck me when I listened to a story on Radiolab about a woman who adopted several children, each of them conceived by the same woman, with different fathers, though the woman in question was in no position to take care of her children and kept giving them up for adoption immediately after their birth. The adopting mother decided to start a program that used financial incentives to induce women who she thought should not be having children (drug users, for example) to use birth control or to have themselves sterilized. Though the woman who initiated this program believed that she was organizing something very positive, her program was condemned as a form of eugenics. None of us, the condemnation held, should be deciding which people ought to procreate and which people ought to refrain from procreating. To make matters worse, the women she targeted for her intervention tended to be low-income and otherwise disadvantaged.
I agree with the view that it is inappropriate for some of us to decide which others of us are fit to procreate. The Radiolab story, however, took the critique in a direction that made little sense to me. An interviewer asked one of the children adopted by the woman who initiated the financial incentives program whether she (the adoptive daughter) would have wanted her biological mother to have received the financial incentive to refrain from reproducing. In other words, the interviewer asked this young woman whether she would have wanted not to be conceived.
You can listen to the Radiolab story to find out what the young woman said in response to this question, but I found the question exceedingly unfair and even fatuous. Most people who are not suicidal would, presumably, not prefer a world in which they were never conceived. The problem with eugenics is not, however, the fact that some people who are glad they were born would never have been born, though the question posed to this young woman implied otherwise. In reality, any time people give and other people take advice about the best circumstances in which to have a child, the result is that some children who would otherwise have been conceived and born are not conceived and born. For example, when a doctor giving her patient pain medication for migraines tells the patient, "you should use birth control while you are taking this medication, because it is associated with addiction in newborns," the result is likely to be that some child who might have been born addicted to painkillers but might nonetheless have grown up to be glad that he or she was born is never conceived or born.
If the woman on pain medication for migraines decided (against her doctor's advice) not to use birth control, and she conceived and delivered a baby addicted to painkillers, she would be obligated to take good care of that child and to do her best to raise him or her to be a happy, healthy, and contributing member of society. Once someone is born, we have an obligation to treasure that someone, no matter how sub-optimal the circumstances of conception and/or birth. To do so, however, is not to deny that there are circumstances -- including when a woman is taking an addicting medication for migraines (or illicit and addicting drugs) -- when it might be better to avoid conception. We can and must hold these two ideas in our heads at the same time, despite the apparent tension, if we are to continue exercising autonomy and judgment in deciding when and under what circumstances it is best for each of us to have our children.
Having said all of this, I want to reiterate that competent adult individuals are best left in charge of deciding whether and when they will bring children into the world, with others at most offering advice and support but not coercive (or other) financial incentives in one or the other direction. This state of affairs, however, is a matter of individual procreative autonomy and respect, not a matter of protecting the entitlement of everyone who might have had a good life to come into existence. As I argued in a law review piece published about three years ago, none of us, prior to our conception, had (or has) an individual right to come into existence. Others (not to mention blind luck) are always necessarily, and rightly, in charge of the contingency of who comes to exist. The pertinent moral question is which others -- the individual, the government, or a well-meaning but misguided philanthropist -- will be the ones to make those choices. And it is on that moral question that we most profitably focus our attention.