I’m not a big fan of NAP or “agression”-based analysis. The first step is to identify the property. The next step is to identify who has rightful ownership of the property. The last step is to ask who is unilaterally reassigning property boundaries.
The property is not the baby since prenatal babies cannot argue their rights at law. Property rights emerge from verbal argument in disputes and always attach to persons who can have standing in a dispute. The property is guardianship rights over the baby, that is what is being disputed.
Until the baby is born, the mother clearly has exclusive guardianship rights over it. She can refuse to eat. She can commit suicide. Because the baby is parasitically attached to her, no one can assist the baby without exercising force against the mother herself. After the baby is born, both father and mother have equal guardianship rights from the point-of-view of relatedness to the child but law generally assigns a higher precedence to the mother’s guardianship due to the unique nurturing relationship between a mother and child.
Finally, the question of who is “aggressing”, that is, who is attempting to unilaterally reassign property boundaries. Does the mother have the right to cancel the potential guardianship rights of all other kin of the prenatal baby or, on the other hand, do the potential guardians of the prenatal baby have the right to forcibly compel the mother to undergo birth (natural or otherwise)?
I think the answer to this problem is complex. There are several cases. In the first case, the fetus is not viable outside the womb. In this case, if the mother were to have the fetus removed from her body, it would necessarily be dead or die. Hence, the potential guardians cannot possibly have any claim to right of first refusal since there is nothing for them to make claim to. In the second case, the fetus is viable but could be removed with less damage to the mother’s body if it were aborted. This is the most difficult case and would probably have to be resolved on a case-by-case basis (perhaps if the potential guardians offered a cash payment, they could provide sufficient incentive to the woman to undergo some additional damage to her body in order to receive the child alive). The third case is where the damage to the mother’s body is the same if she aborts or she delivers. In this case, there cannot possibly be any violation of her property rights in her own body to preserve the baby alive. Hence, the mother cannot object that delivering the baby alive would be a violation of her property rights in her own body which means the rights of the potential guardians in the child’s life would prevail.
Clayton -