I have received a very thoughtful rebuttal to one aspect of my post “Libertarians and Abortion.” The comment should be read in its entirety; for brevity, I only include a portion of it here:
Anonymous July 15, 2015 at 10:53 AM
…in your attempt to refute Block citing unilateral contract law you already presume the candidate counterparty is A) born and B) possesses some semblance of a cognitive faculty, i.e. is not a vegetable or an animal. The fifteen-year-old boy finding Hitler on skis in Bariloche meets both these criteria. The embryo, like the vegetable and the animal, meets neither.
I don’t presume he is born – why would I presume something so obviously wrong? I presume he is human from conception, as does Block; therefore there is no issue here.
I agree with you that unilateral contracts can apply to counterparties that did not exist at the time the unilateral contract offer was first extended. But at whatever time a potential counterparty does step forward and take up the contract, he must exist _at_that_ time_. He must elect to step forward. He must have the cognitive ability to understand the terms of the contract and agree to them. An embryo lacks all this. Thus the unilateral contract is never actually taken up.
There are two aspects to this critique: was the counterparty born at the time the offer was taken up, and does the counterparty have some cognitive ability. I have addressed the first already; the remainder of this post will deal with the second.
First, some definitions:
Minors and Infants: The terms “minor” and “infant” are used in law to describe a person who is under the legal age of an adult. In nearly all cases, an “adult” is a person who is 18 or older.
Please note, “infants” are included.
Voidable Contract: The general rule regarding contracting with minors or infants is that such a contract is voidable by the minor. This rule has been established to protect younger individuals who may not fully grasp the consequences of certain contracts. Minors are believed to lack the capacity to contract. Therefore, courts and statutes provide minors with the ability to exit the contract at the minor’s discretion. This right does not belong to the other contracting party; it is only at the discretion of the minor.
Please note: the contract is voidable, not void.
A minor or infant need not have the capacity to contract – in fact, it is “believed” that they do not. Yet, they can contract! This is the entire point about “voidable” contracts. How could the minor or infant void it if he had capacity when he contracted? On what basis?
To extend the point further:
A person who is mentally incompetent (non compos mentis) lacks the capacity to make a contract. The cause of the mental incompetency is immaterial. It can be the result of a mental illness, excessive use of drugs or alcohol, a stroke, etc. If the person does not have the mental capacity to understand that a contract is being made or the general nature of the contract, the person lacks contractual capacity. A person who is mentally incompetent may ordinarily avoid a contract in the same manner as a minor. If the person later becomes competent, he can ratify or avoid the contract at that time. (Emphasis added)
A mentally incompetent person certainly does not have the capacity to contract, yet the contract is both enforceable by the mentally incompetent party and only voidable by the mentally incompetent party. This should pretty much cover the entire spectrum of the cognitive abilities of any human from conception on.
Back to the anonymous commenter:
It is an entirely different and entirely arbitrary thing to claim a collection of biological cells with no cognitive ability whatsoever necessarily has a particular set of values, understands the contract terms and conditions, and is necessarily agreeing to them.
Of or relating to cognition; concerned with the act or process of knowing, perceiving, etc. 2. Of or relating to the mental processes of perception, memory, judgment, and reasoning, as contrasted with emotional and volitional processes.
“…no cognitive ability whatsoever….” Given this definition, the same can be said about all infants and many minors. Yet, we see from the above (and by the fact that such contracts are voidable, not void) that infants and minors can contract.
From conception, the unborn child – like any minor – can contract; capacity and competence does not change the enforceability against the counterparty, it only preserves rights to the minor / infant / unborn child.