Where Rothbard Went Wrong: Children’s Rights and Abortion

In 1982, Murray N. Rothbard, an American economist, historian, political theorist, and proponent of Natural Law, published The Ethics of Liberty, in which he attempts to outline how a society would function under the realization of the libertarian interpretation of Natural Law. The Ethics of Liberty provides a framework of a multitude of topics, including the notion of children’s rights in a libertarian society. Rothbard’s beliefs regarding children’s rights seem contradictory to the very notions Rothbard (and all natural law theorists before him) set forth, which are all based on the axiom of self-ownership and the ensuing personal responsibility that is a necessary conclusion of self-ownership. In The Ethics of Liberty^[1], Rothbard makes the libertarian case for abortion, accepts the case, and derives the necessary conclusions of a pro-choice status as a libertarian, the idea that one has no responsibility to provide for his or her child. It is the purpose of this paper to outline Rothbard’s argument, discuss the natural conclusions to Rothbard’s case, and to demonstrate the logically reprehensible nature of Rothbard’s conclusions pertaining to abortion and the rights of children.

Rothbard starts by declaring abortion legitimate by arguing that a fetus is within the womb of a woman by her consent and her consent alone. From this, Rothbard notes that if a mother chooses to revoke consent of presence in the womb from the fetus, the fetus is then a “parasitic ‘invader’” (Rothbard 4) of the woman’s body and that the woman therefore has the right to expel this parasite from her body. Rothbard holds his position even assuming that every fetus is indeed a human being (Rothbard 6), stating that no human has the right to act as a parasite to an unwilling host. This proceed’s from Rothbard’s adherence to the notion that positive rights do not exist, meaning that one does not have the right to other people’s labor.

Rothbard sees the pregnancy of an unwilling mother as an encroachment of of her natural right to self ownership. Pregnancy and raising children, however, does not contradict the notion that positive rights are nonexistent. Take the following scenario: If an individual is aimlessly walking around and unintentionally knocks a child into a pool, is it not the responsibility of the individual to rescue the child? Would it not be — at the very least — manslaughter to neglect the child’s need for rescue from the water, lest the child drowns? Most legal scholars and proponents of natural rights would argue that it is absolutely the responsibility of the individual, morally and legally, to rescue the drowning child, for the individual is responsible for the child’s position as a potential victim of drowning.

By knocking a child into a swimming pool, it would be manslaughter, even murder, for an individual to not save the child from the product of his or her mistakes. Assuming the fetus is indeed a living human (as Rothbard does)^[2], one cannot legitimately allow the child to die as it was through the (assumed) consensual sexual relations of the mother and the father through which the infant was created^[3]. In essence, the child was put into a situation by the mother and father in which the child’s life depended on the mother. To say that a mother has the right to terminate the life of this child, is to say that the individual would be legitimate in allowing the child which he or she knocked into a pool to drown. The only inherent difference between the two circumstances is the amount of time in which the child absolutely cannot survive without the aid of someone else.

That, however, is not an excuse for abortion. From self-ownership emerges the notion of personal responsibility. As an individual, one is responsible for the products of his or her actions. If one endangers the life of another human being, even in the action of creating that human being, it is the responsibility of the individual to see the endangered life through the dangerous circumstance until the life is able to survive on its own and provide for itself as a natural self owner. While it may be legitimate to remove a fetus from the womb of the mother with consent, it is wholly illegitimate to claim one has the legal right to allow this human being to die. If the act of removing the fetus from the womb will kill it, therefore, it is an illegitimate action and an egregious encroachment of the natural rights of another human being. Abortion, under the implication that the termination of the pregnancy will lead to the death of the fetus, is completely illegitimate in a society that is governed by Natural Law. A libertarian society cannot tolerate such a disregard to the right to life.

Rothbard is commendable, nevertheless, for his logical consistency on this matter. Rothbard does not allow for emotion to play a role in his argumentation. When Rothbard came to the conclusion that abortion is legitimate, he also came to the necessary conclusions of that assumption. Whereas one cannot compel a mother to the positive action of carrying a child for nine months, according to Rothbard, one cannot force a parent to conduct in the positive action of providing for this child either.

Rothbard derives from the Lockean principles of property that whereas the mother is the one that bore the child, she is therefore the “homesteading owner” (Rothbard 9) of the child. Rothbard elaborates on this notion though. He does not believe that a full grown adult is still the absolute property of his or her mother. Rothbard concludes that a mother’s property right in children is both “limited in time” and “limited in kind” (Rothbard 10). From this standpoint, Rothbard comes to the conclusion that the so-called property right a mother has to her child is more so a “guardianship” (Rothbard 11). In this guardianship, Rothbard argues that a mother does not have the right to aggress against the child, but she also does not, and should not, have the obligation to provide for the child. Rothbard states this as such: “But the parent should have the legal right not to feed the child, i.e., to allow it to die” (Rothbard 12). Rothbard concedes that this is not the moral answer, but it is the legal answer as far as he is concerned. Rothbard concludes that a parent has the right to allow a child, deformed or not, to die for any reason whatsoever.

Rothbard explains his position by demonstrating two major flaws in the notion that parents are obligated to care for their children: the violation of the rights of the parent and the notion that it is just the parent that is obligated to care for the child. For the first flaw, Rothbard shows that it is fallacious to claim that the needs of one person dictates the actions of another. For the second flaw, Rothbard asks about why it is just the parents that are obligated to keep the child alive. Rothbard uses an analogy pertinent to the notion of rescuing a child that is not yours from a burning car that killed the parents. Since the rescuer saved the child, Rothbard argues that the rescuer is then responsible for the child assuming that they that give life must sustain it (Rothbard 21).

Rothbard also elaborates on the creation argument. He argues that if the parent is obligated to keep the child alive, then the obligation would not cease, ever. Rothbard also calls this conclusion to question by referring to the future when scientists could create human life in the lab. He asks if the scientists are obligated to keep the child alive as well, even if the child is severely deformed and “scarcely human” (Rothbard 17).

Despite the moral and logical atrocities of Rothbard’s arguments for abortion, his arguments pertaining to the Law and parenting almost downplays the nature of his abortion argument, although these arguments are the necessary conclusions of the legitimacy of abortion. Fortunately enough, one can conclude that these arguments lack philosophical grounding now that Rothbard’s case for abortion has been deemed illegitimate using practical logic. Nonetheless, it is worthwhile to address these issues and show holes in the logic of Rothbard on the subject of children.

Rothbard’s belief that a parent’s property right to a child is more of a guardianship than anything is wholly legitimate. Rothbard, however, does not understand the implications of guardianship. Guardianship is legally defined as “The office or duty of one who legally has the care and management of the person, or the estate, or both, of a child” according to Duhaime’s Legal Dictionary. By having guardianship, there are responsibilities that are inherent to this partial property ownership. Interestingly enough, the swimming pool analogy is a proof that one does indeed have the legal responsibility to provide for their children. By putting this child in a situation in which the child’s life is in an individual’s hands, it is the responsibility of the individual to secure the survival of the child.

Under this logical conclusion, one cannot possibly argue that a parent has the right to allow their kids to starve if the parents wish to no longer have children. The rights of the parent are not violated by having to provide for his or her child in the same way that the rights of the reckless individual is not violated in being obligated to rescue the child who is drowning because of him or her. Rothbard also did not examine the reason why it is the obligation of the parents to provide for the child well enough. If he had, he would have realized that it is because of the decisions of the parents that the child is there in the first place. Whereas this life is in danger because of their decisions, and their decisions alone, it is their sole responsibility to ensure that the child survives. The mother is obligated to carry out the pregnancy. The parents are obligated to raise the child or provide support to those who raise the child.

To this statement, Rothbard would then likely ask why the obligation stops when the childhood of the individual ends. This is due to the fact that adults are capable of providing for themselves. Children, especially young children, are in an extremely fragile condition in which they could not possibly provide for themselves effectively. Whereas the parents put this life in the danger it is in, it is the responsibility of the parents to ensure the sustenance of the life. Regardless of the creation argument, the endangerment argument is fundamental.

To answer the question as to the burning car that Rothbard proposed, the responsibility of the rescuer is dependent on the circumstances of the crash. If the rescuer was a simple bystander, he was of no legal obligation to rescue the child, as the child was not directly put into danger by him. Noting that the rescuer was noble enough to secure the child, he or she is also most likely noble enough to ensure someone takes care of the child. The rescuer as a bystander would be of no legal obligation to care for the child.

If the rescuer caused the crash, however, it is indeed his responsibility. If a man causes a crash and lets people which he is capable of saving die, he is indeed responsible for the death of those people. It would be under the same circumstances if it were a child that the individual allowed to die. In many respects, Rothbard’s analogy to rescuing a child from a burning car is very similar to the analogy pertaining to the swimming pool. By endangering the life of the child (or the group of people in the vehicle), the life or lives become your responsibility until they are capable of surviving on their own again. As for children it would likely be preferable that someone else takes care of the child, but the responsibility of ensuring that happens rests entirely with the individual that is responsible for the crash that not only threatened the life of the child, but the crash that orphaned the child. This is why people at fault in a crash are often obligated to assume the medical costs of the victims of the crash. This principle follows suit to the scientist as well. No matter how it was created, a human being is a human being. If a scientist creates a human being that is severely deformed, he or she has the obligation to care for this human being as this human being was put into the situation it experiences by the scientist. The swimming pool analogy still stands even for humans that were created in labs.

In conclusion, while one of the most influential writers on libertarian theory, Murray Rothbard was dangerously wrong when the topic of children’s rights are discussed. Without the use of morality, one can still see that parents have the legal obligation to not only ensure the child is born, but also has the obligation to ensure the child is cared for so long as it is not capable of caring for itself. If one is to add morality, my argument would only strengthen. In a society based on the notion of Natural Law from a libertarian perspective, abortion and child abandonment cannot be tolerated. Without the fundamental right to life, what rights actually exist anyway?

^[1] Chapter 14 to be specific.

^[2]for the sake of argument, we will assume it is indeed a human as the elaboration as to why would likely take up the rest of the paper. But in short, a fetus is a collective of growing and dividing human cells. Whereas these cells are growing and dividing, it is a living thing. Whereas the cells are human, it is a living human. Fetus, by the way, is the Latin word for baby.

^[3]Pregnancies as a result of rape is a far too sensitive matter to address in this paper. For the sake of argument, let us focus on the pregnancies as a result of consensual actions