Reconsidering Ownership: Analyzing the Treatment of Foetuses as Property

Introduction

Property is a form of legal right, which comprises a system of rules governing the use, enjoyment or disposal of the property. Macpherson proposes the theory of “possessive quality” according to which a person owns his person or capacities and that he does not owe anything to the society. A radical feminist in this regard has defined a foetus as a property of a woman. This essay will discuss whether a foetus can be treated as property by analysing the elements of a property in comparison to a fetus. The essay will further discuss the advantages of treating foetuses as property and the value attached to a foetus as a property.

Can A foetus be legally treated as property?

Private property rights are rights to use something that one owns within legal limits; to claim to return on that use, including rent, sale or interest; to alienate from something from other people through use or transfer to other people. Property is a form of a legal right or sometimes defined as a human right. Waldron states that the concept of property is a conceptual system of rules that govern the “access to and control of material resources”. Ownership, in turn, expresses this abstract idea of an object as being correlated with an individual in respect to a rule that society will uphold the decision of that individual as being final in case there is a dispute around what ought to be done with the object. There are significant property features such as, the right to possess exclusive physical control of a thing; or permissible control the things admit; right to use and right to transmissibility. However, when the elements of use or transfer are difficult to determine, it would be difficult to define the thing as property. Whether a person is a property or not is subject to the question about what could be done to that person with what legal rights and duties the person might possess. In specific relevance, can these elements of private property rights apply to a foetus?

According to classical liberalism, a person is an intellectual self and is free from nature and irrational constraints of tradition and is open to construct a new order. This theory has a “possessive quality” as described by Macpherson. A person is human because he has the freedom from will of others and is free from relations with others except the one he voluntarily entered. He owns his persona and capacities. He cannot alienate his whole property in his person but may divide his ability to labour. The society comprises a series of market relations. A person’s freedom could be limited only by obligation and such rules necessary to secure the same freedom to other people. The political society acts as a human contrivance to protect property in person and goods.

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1. Macpherson CB, The Political Theory of Possessive Individualism (Oxford University Press 1963) 3.
2. Jean Bethke Elshtain, ‘Reflection on Abortion, Values, and the Family’ in Sidney Callahan and Daniel Callahan, Abortion: Understanding Differences (The Hastings Centre 1984) 53.
3. Doctor Kean Birch et al, Business and Society: A Critical Introduction (Alberto Salazar 2017).
4. Jeremy Waldron, ‘What is Private Property?” (1985) 5(3) Oxford Journal of Legal Studies 318, 333.
5. ibid
6. Ibid, 113-28.
7. Wegner, Chattel or person:?: The Status of Women in the Mishnah (Oxford University Press 1988).
8. T. M. Lemos, Violence and Personhood in Ancient Israel and Comparative Contexts (Oxford University Press 2017) 72.
9. Supra, (n.2).
10. Supra, (n1).

Under atomism and contract doctrine, abortion is cast as the right of possessing self and choosing self, which is also claimed as an absolute right characterised by freedom from the chains of nature and traditions. According to Atkinson, a woman has the choice to decide to:

“permit the one, i.e. the special function, her function, to operate upon her raw material gift ... of the woman may decide to stop the process; the embryo is destroyed...It is only when the foetus ceases to be the woman’s property...that the choice to exercise of not her reproductive or that foetus can be interfered with.”

If the principle of human rights and “wants” are read and applied together with “value” theory, it could be deduced that the value of foetus is entirely dependent on the value of the society attributed to it as argued by Callahan that foetuses’ possess no value until someone wants it, which gives a moral interest or human worth.

Advantage of treating Foetus as property

If every man possesses the property in his own person and owns the labour of his body, it may be argued that what a man owns is action and the resources or wealth produced by their body. The law under the Property Act 1925, s.205 defines property and combined with the theory, suggests that the ownership over property in the persons is personal property as defined under the Act 1925. Legalists are right when they say that the necessary condition for legal personhood of an entity is when that entity is treated as a legal person by the legal system. It is, therefore, an institutional fact of whether the entity is a legal person or not. If it is otherwise, it means that legal norms and decisions cannot change the entity’s legal personhood. In this regard, fetuses have fewer rights and that legal personhood resembles ownership. The concept of personhood is only relevant where preventing death is at issue. A foetus is not a person and therefore, the concept of personhood is not applicable.

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11. Supra, (n.1).
12. Supra, (n.2) 53-54.
13. Daniel Callahan, Abortin: Law, Choice and Morality (Macmillan 1970) 462.
14. ibid, 457.
15. Donna Dickenson, Property in the Body (Cambridge University Press) 33-34.
16. The Law of Property Act, s.25.
17. Visa AJ Kurki, A Theory of Legal Personhood (Oxford University Press 2019) 93.
18. Laura Martha Purdy, Reproducing Persons: Issues in Feminist Bioethics (Cornell University Press 1996) 94.

The advantage of treating a foetus as personal property will advance the right of a woman over her body. For instance, in abortion debate, the core issue is more to distinguish between the negative right not to be killed and the positive right the foetus may have to life support. The concerning issue is whether a woman owes the foetus the life support and not whether the woman violates the negative right not to be killed. Assuming the foetus as a moral person with the right to life, the woman does not violate this right as she has a right to decide what to do or not to do with her body. In case she gets raped or there is a contraceptive failure, she does not violate the right of the foetus to life support. In this relevance, the concept of property signifies non-interference in dealings of the owner of his property and the freedom to buy and sell or otherwise dispose of the property. Since a woman has property rights over her body, she has the power to exclude the foetus from her body, if she desires.

Treating a foetus as a property creates commodity value of the foetus. It would create the potential of removing certain flaws in laws, such as that of surrogacy. In the UK, surrogacy agreement is not enforceable. This has led to various disadvantages like manipulation of surrogates, disregarding their health and insufficient payment of their services due to improper definition of reasonable expenses to be paid to the surrogates. In surrogacy law, obtaining parental orders by intended parents has excessive and restrictive legal requirements, which have created anomalies leaving the child in a legal quandary. These detrimental effects on the surrogates could have been avoided had there been a commercial value attached to the foetus and commercial arrangements were allowed. Surrogates would have received their fair share from the ownership of the foetus and could have bargained for reasonable expenses incurred to take care of the “property” in the arrangement. Authorities have demonstrated that commodity characteristics were attached to surrogate children; for instance, courts in UK emphasise that child’s welfare exceeds prohibition of payment. In Re L (A Minor) Justice Hedley cited the Human Fertilisation and Embryology Act 2008 and other regulation such as 2010 Regulations (S1 2010/986) and explained that in case of extremely evident breach of public policy, the determination could favour public policy over the paramount consideration of child’s welfare. Sir Nicholas Wall P also held that an amount as high as £27,000 cannot stop the intended parent’s parental order. These cases show that courts have approved payments to surrogates exceeding reasonable expenses. Courts have also awarded parenthood rights to couples who entered into a commercial surrogacy arrangement overseas. The Human Fertilisation and Embryology Act 2008, s59, read with Section 2A of the Surrogacy Arrangements Act 1985 exempt services offered by not-for-profit bodies from the prohibition of entering into surrogacy arrangements. These bodies can receive ‘reasonable payment’ in order to meet costs related to initiating negotiations in making the arrangements. Given these examples, advantages of attaching property elements and commodity value to foetus cannot be denied. It has potential of removing various flaws of legal procedure and in fact may enrich the woman who “owns her body” and her foetus.

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19. Wanjiru Njoya, Property in Work: The Employment Relationship in the Anglo-American Firm ( Ashgate Publishing Company 2007) 92.
20. Ibid
21. J.D. Goldberg, ‘Involuntary servitudes: A property-based notion of abortion’ (1991) 38 University of California Los Angeles Law Review 1597.
22. S.H. and others v. Austria, no. 57813/00 para 113.
23. Amel Alghrani and Danielle Griffiths, ‘The regulation of surrogacy in the United Kingdom: the case for reform’ (2017) 29(2) Child and Family Law Quarterly 165-86.
24. Sara Rintamo, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.
25. Re L (A Minor) [2010] EWHC 3146 (Fam), 2010, para 10.

Disadvantages of treating Foetus as property

Stakeholder theory undermines private property holdings as it denies the right to determine use and disposal of the property and stipulates that the property should be used for the benefits of the stakeholder. For applying stakeholder theory to foetus as property, the stakeholders need to be identified so as to identify the disadvantages of treating foetus as property. In regard to “possessive quality” mentioned above, it is noted that ECHR, Article 17(1) provides exception to the “right to own, use, dispose of and bequeath his or her lawfully acquired possessions” that a person possession could be deprived in public interest and under other conditions provided by law. Reading Article 17(1) with the Stakeholder theory, it could be stated that public interest is the first stakeholder and legal framework is the second stakeholder, whose benefits should be considered while exercising the right to foetus as property.

As mentioned above, property is a legal right or sometimes a human right. If foetus is property, the owner defines the system of rule and the access and control of the material resource in a foetus. However, will this system of rules have capacities to always conform to applicable laws? For example, even in case where a woman does not undergo abortion, if the foetus could be removed alive, it should be done as she is entitled to separate the foetus from her life support system. Any handling regarding a foetus needs medical expertise and in turn attracts economic and social dimensions. For example, the Abortion Act 1967, s1 makes abortion illegal unless approved by two doctors after considering relevant factors. Given this requirement of medical expertise, it would be highly impracticable and lead to medical issues for the government as well as the “owner of the foetus” to give property definition to a foetus. Thus, the choice of system of rules governing property in foetus cannot be left to the owner.

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26. Re X and Y (Children) [2011] EWHC 3147 (Fam).
27. Re: X & Y, [2008] EWHC 3030, No. FD08P01466.
28. Kirsty Horsey and Sally Sheldon, ‘Still Hazy After All These Years: The Law Regulating Surrogacy (2012) 20 Medical Law Review 67–89.
29. Supra, (n.18) 90.
30. Doctor Kean Birch et al, Business and Society: A Critical Introduction (Alberto Salazar 2017).
31. John P. Reeder, Killing and Saving: Abortion, Hunger, and War (The Pennsylvania State University 1996) 19.

There is the third stakeholder, the health department, which would be burdened with potential spike in medical issues to be dealt with if foetus is designated property and owners have a right to deal with it in the way they desire. There is a dilemma attached when a foetus is considered property and is open to free choice of disposal. On the one hand, benefits of the stakeholders are to be considered, on the other, there is the issue of costly health care, which may make consideration of stakeholder impossible. Reportedly, there has been limited access to abortion in public hospitals. Further, the UK government has lesser spend on health but provides a universal service accessible only to permanent resident. This leaves out other residents that are not permanent, which could potentially increase the dilemma multifold. Based on these situations, it could be stated that the fourth stakeholder is the owner herself, who would be exposed to potential health care inaccessible and the resulting health risks.

Reportedly, it is during pregnancy that domestic violence may escalate. In such circumstances, treating foetus as property would cause serious social problems. It would not be morally and legally justified to impose liability arising out of the property damage to harm caused to foetus as well as the mother. In case of any contractual arrangement such as surrogacy, there would be complexity of laws to be applied. Courts often do not intervene in contract of parties with comparable bargaining power and they are able to insure against risks and apportion them as they see fit. However, in the case of unequal bargaining such as when the woman is a victim of domestic abuse and would naturally have lesser bargaining power, how will the court intervene? There would be complexity as to whether the Consumers Rights Act 2015, in terms of quality of goods, risk upon the goods until delivery, and many more will apply, or whether to apply Unfair Contract Terms Act 1977 where the mother would be in a disadvantaged position due to her conditions. Also, similar difficulty would arise in the case of substance abuse by the woman. It would also be morally and legally unjustified to apply provision of Consumers Rights Act 2015 to cases where the woman is under substance abuse. How will the Misuse of Drugs Act 1971 apply considering that the woman is carrying the property in the foetus, which is subject to some commercial deal or somebody else’s rights and interest? There is a potential of high conflicts between the laws, affecting one major stakeholder in the legal system, the benefits of which would not be considered at all if foetus were treated as property.

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32. Panos Vostanis, Mental Health Interventions and Services for Vulnerable Children and Young People (Jessica Kingsley Publishers 2007) 166.
33. Watford Electronics Ltd v Sanderson CFL Ltd [2001] EWCA Civ 317.

From commercial transaction perspective, if foetus is property and is subject to commodity valuation, it would present a complex form of negotiation leading to serious practical problems. For example, the elements of emotions and ego may impact or affect fair negotiation and they might severely affect each other’s interest. Reiterating the plight of a surrogate, the presence of strong emotions and also ego cannot be denied. This will upset a fair outcome interest of the parties. Also, there is the social factor of trust occupying a significant role to build stronger influence on the parties’ relationships. How will the owner behave when any potential agreement is analysed from an economic and social perspective? There would always be situations involving unfair negotiation where the surrogate is in a disadvantaged situation and the other party holds an upper hand in negotiation.

Treating foetus as property would cause many breaches of moral norms imbibed in established laws. The owner would have discretion to use or dispose it on her choice would conform to Hart’s theory of positivism, but goes against the principles on internal morality. Legal positivism is a one-way projection of authority, and if foetus is property, the law made by the owner is one-way projection lacking moral norms of the society. The owner would be governed by her own system of rules, which could be overturned or changed at her own discretion or convenience. This is against the element of constancy or generality required in internal morality principle. Fuller’s emphasis on adequacy of natural law would be more appropriate in laying structure of legal reality. This seems impossible in the case of foetus being treated as property. Discover additional insights on A Critical Analysis of Mortgagee and Mortgagor Rights in Light of Cheltenham by navigating to our other resources hub.



Conclusion

Commodification of foetus would lead to various legal, social, moral, and economic problems. The stakeholders involved would find themselves in conflict with each other and with the system of rules in a property. Considering the benefits and disadvantages, it can be said that foetus cannot be treated as property as this would be contrary to public interest and justice.

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34. David Lavery, The Essential Sopranos Reader (Kentucky: University Press of Kentucky 2011) 233.
35. Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving in (New York: Houghton Mifflin Company, 1991) 29-32.
36. Stephan M. Wagner, Linda Silver Coley and Eckhard Lindemann, ‘Effects of suppliers' reputation on the future of buyer–supplier relationships: the mediating roles of outcome fairness and trust.’ (2011) 47 (2) Journal of Supply Chain Management 29-48.
37. HLA Hart, The Concept of Law (Oxford: Oxford University Press 2012).
38. George Breckenridge, ‘Legal Positivism and the Natural Law: The Controversy Between Professor Hart and Professor Fuller’ (1964) 18 Vand. L. Rev. 945.
39. David Brooke, Q&A Jurisprudence (Routledge 2015).
40. Ibid
41. Douglas Sturm, ‘Lon Fuller's Multidimensional Natural Law Theory.’ (1965) 18 Stan. L. Rev. 612.

Cases

Re L (A Minor) [2010] EWHC 3146 (Fam), 2010.

Re: X & Y, [2008] EWHC 3030, No. FD08P01466.

Re X and Y (Children) [2011] EWHC 3147 (Fam).

Watford Electronics Ltd v Sanderson CFL Ltd [2001] EWCA Civ 317.

Books

Birch et al, Business and Society: A Critical Introduction (Alberto Salazar 2017).

Brooke D, Q&A Jurisprudence (Routledge 2015).

Callahan D, Abortion: Law, Choice and Morality (Macmillan 1970).

Dickenson D, Property in the Body (Cambridge University Press).

Elshtain JB, ‘Reflection on Abortion, Values, and the Family’ in Sidney Callahan and Daniel Callahan, Abortion: Understanding Differences (The Hastings Centre 1984).

Fisher R, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving in (New York: Houghton Mifflin Company, 1991).

Hart HLA, The Concept of Law (Oxford: Oxford University Press 2012).

Kurki VAJ, A Theory of Legal Personhood (Oxford University Press 2019).

Lavery D, The Essential Sopranos Reader (Kentucky: University Press of Kentucky 2011).

Lemos TM, Violence and Personhood in Ancient Israel and Comparative Contexts (Oxford University Press 2017).

Macpherson CB, The Political Theory of Possessive Individualism (Oxford University Press 1963).

Njoya W, Property in Work: The Employment Relationship in the Anglo-American Firm (Ashgate Publishing Company 2007).

Purdy LM, Reproducing Persons: Issues in Feminist Bioethics (Cornell University Press 1996).

Reeder JP, Killing and Saving: Abortion, Hunger, and War (The Pennsylvania State University 1996).

Vostanis P, Mental Health Interventions and Services for Vulnerable Children and Young People (Jessica Kingsley Publishers 2007).

Wegner HM, Chattel or person:?: The Status of Women in the Mishnah (Oxford University Press 1988).

Journals

Alghrani A and Danielle Griffiths, ‘The regulation of surrogacy in the United Kingdom: the case for reform’ (2017) 29(2) Child and Family Law Quarterly 165.

Breckenridge G, ‘Legal Positivism and the Natural Law: The Controversy Between Professor Hart and Professor Fuller’ (1964) 18 Vand. L. Rev. 945.

Goldberg JD, ‘Involuntary servitudes: A property-based notion of abortion’ (1991) 38 University of California Los Angeles Law Review 1597.

Horsey K and Sally Sheldon, ‘Still Hazy After All These Years: The Law Regulating Surrogacy (2012) 20 Medical Law Review 67.

Rintamo S, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.

Sturm D, ‘Lon Fuller's Multidimensional Natural Law Theory.’ (1965) 18 Stan. L. Rev. 612.

Wagner SM, Linda Silver Coley and Eckhard Lindemann, ‘Effects of suppliers' reputation on the future of buyer–supplier relationships: the mediating roles of outcome fairness and trust.’ (2011) 47 (2) Journal of Supply Chain Management 29-48.

Waldron J, ‘What is Private Property?” (1985) 5(3) Oxford Journal of Legal Studies 318.