Liberal Self-Ownership

A detour back through the seventeenth century, to social contract theory, and the philosophy of private property, threads the needle of connection to the twentieth-century political theory, and to twentieth- and twenty-first-century reproductive rights. In the libertarian political tradition, the state is minimal, and rights are negative. A framework from John Locke’s social contract theory is instrumental to Robert Nozick’s account of liberal self-ownership. Although there is a debateFootnote ^{1 ,} Footnote ^{2 ,} Footnote ³ in the political philosophy literature regarding the centrality of the self-ownership thesis for libertarianism, and especially in the work of Robert Nozick, a version of the view that individuals are owners of themselves and therefore have rights to exclusive control over themselves that entails negative rights to noninterference (from others and from the state) is indebted to Nozick and Locke.

Locke wrote about property in the person.Footnote ⁴ Owning property relates both to political standing and other rights claims for Locke. Ownership of property is tied to one’s labor, therefore back to one’s body. Except that it was perfectly imaginable for Locke that one’s ownership be produced through the labor of other people, and that other people’s labor was owned by the land-owner rather than such labor generating workers’ self-ownership of their body, or ownership over the land they work. Land owners exerted control over serfs or slaves who work their land.Footnote ⁵ Land owners can also own others’ labor and bodies, and even individuals with the standing of property owner are not fully self-owners for Locke because God is the ultimate owner.Footnote ⁶

Nozick refers to Locke when he says that a notion of property “helps us understand why earlier theorists spoke of people as having property in themselves and their labor. They viewed each person as having a right to decide what would become of himself and what he would do.”Footnote ⁷ Nozick goes on to say that when the state taxes citizens, it takes from them the product of their labor, which we are to understand is their property. But because your body produces your labor, which produces your wages, for the state to garnish part of your wages through taxation would make the state “a part-owner of you; it gives them a property right in you. Just as having such partial control and power of decision, by right, over an animal or inanimate object would be to have a property right in it.”Footnote ⁸ These comments, and one explicit use of the term “self-ownership,” fall on two pages of Nozick’s Anarchy, State, and Utopia but have spun out a cottage industry of theory indebted to the “self-ownership thesis.”

Jason Brennan and Bas van der Vossen suggest that self-ownership ought to be read as a “conclusion, not a premise” of Anarchy, State, and Utopia, and others have challenged or downgraded the influence of self-ownership on libertarianism’s main claims. Pateman has argued that for political reasons, the connection between property and politics is best conveyed in Locke’s original language of property in the person, not the phrase “self-ownership,” because property in the person best connects to the political valence of property.

Yet self-ownership persists and connects to concepts of autonomy and self-determination. Self-ownership suggests that individuals are the authors of their own bodies and persons, with exclusive control over them. This vision of individual control and autonomy has an appeal not only for libertarianism but for both healthcare ethics and for feminist ethics.Footnote ⁹ Yet the rhetoric of self-ownership, although appealing and pervasive, ultimately cashes out in worrisome ways that we ought to reject as a stand-alone premise—or conclusion—for reproductive justice.

In a biomedical context, Tom Beauchamp and James Childress offer a three-condition theory for autonomous acts not autonomous persons, focusing on intentionality, understanding, and freedom from external control.Footnote ¹⁰ As Quill Kukla (writing as Rebecca Kukla) observes, the “working notion of autonomy” in medicine makes possible “empirical judgments about whether or not a given agent is capable of acting autonomously, a particular decision is autonomous, a protocol appropriately protects patient autonomy,” and not whether the patient herself is autonomous.Footnote ¹¹ A basic self-determination view of autonomy is instrumental within medicine but possibly, as Kukla says, also “inadequate.” Whether or not it is inadequate for the function and scope of medicine, it is a thin concept of autonomy. The kinds of medical decisions made under the rubric of reproductive health choices (which connect to reproductive technologies but also social norms and political laws) are not merely autonomous acts but fit within a broader sociopolitical account of autonomous agents.

The philosophical scholarship conceptualizing autonomy generally agrees that autonomy is a constructed, relational concept.Footnote ¹² Debates ensue within the contemporary autonomy literature between substantivist and procedural accounts. Without going into the nuances of these views and the diversity within them, the general shape of a procedural view of autonomy tracks more closely onto the biomedical principle of autonomy than a substantive one. Procedural views assume that agents (such as patients) are afforded mechanisms to self-determine (i.e. informed consent, shared decision-making, establishing their own values and preferences as they pertain to medical treatment). It also assumes that agents (such as patients) have minimum rational capacities to act autonomously, unless proven otherwise. Ideally, a procedural approach provides the tools to enhance or realize autonomous capacity when it is lacking. Similarly, in healthcare, patients make their own decisions unless they demonstrably lack sufficient capacity to make the decision at hand, necessitating a surrogate decision-maker. A proceduralist view is content-neutral, whereas a substantivist account requires specific content of autonomy, though such necessary and sufficient content is further debated in the literature.Footnote ¹³

For biomedical autonomy to take on a thicker concept of autonomy, one that attempts to assess autonomous persons rather than decisions, would yield thorny questions that also plague substantivist views. Who determines the right (or necessary) content for autonomy? And what should be done about the many people who might not come anywhere close to meeting given criteria? These are the metaphysical questions with which social and political philosophers grapple, without resolution. It is unlikely to think that medical teams and bioethicists could effectively apply, let alone resolve, these questions at the bedside. But a patient’s autonomous choices cannot be neatly disentangled from their agency as autonomous sociopolitical selves, especially evidenced by the ways in which reproductive healthcare options and choices are reliant on far more than an informed consent conversation between a physician and her patient.

Being self-owners tracks onto a general shape of autonomy, at least a proceduralist one. Like self-determination, it suggests someone is in control of her choices, just as we have exclusive control over that which we own. If one rents an apartment, one has the right to determine the interior design, but the terms of the lease might still restrict some tenant choices such as painting or building. Yet if one owns an apartment, this ownership generally frees one from outside control over any design choices: the owner can paint, replace fixtures, tear down, or build, so long as it is structurally sound. This kind of control over one’s own body, to be free from any outside jurisdiction, has clear appeal—especially for reproductive choices. However, these choices are not acts separated out from our sociopolitical selves and context. Leaning too heavily on a self-ownership notion of autonomy comes with several bullets to bite.

Private Property

Ownership grants control to those with standing as owners. Yet ownership and the control it affords have a problematic history in both theory and practice, built on a shaky conceptual foundation, historical injustices, and ongoing oppression. These injustices do not necessarily warrant throwing out the institution of private property. All things considered, there are ways to work within existing systems that protect control over goods while also ameliorating systems, such as the institution of private property. Ameliorative projects could, for example, redistribute certain goods or redress harms through reparation mechanism. Reconceptualizing ownership in more relational ways, such as a relation to a good or a land, that requires good shepherding of the resource in question, and revisiting whether absolute exclusions of others from owned resources could be relaxed, might make private property a more just institution. Yet even with such ameliorative projects, “ownership” does problematic work within the concept of “self-ownership.”

For Locke (unlike fellow early social contract theorist Thomas Hobbes), you can own property in a state of nature and you enter into civil society in order to protect your property.Footnote ¹⁴ Civil society and the social contract are constructed as safeguards to further rights and protections, not to establish rights. Moreover, all men (and “men” is likely exactly what Locke meant, rather than the term standing in as a term for “persons” or “humankind”) are putatively born into a state of perfect freedom and equality per natural law,Footnote ¹⁵ and the property to which each has a natural right is not simply the material items which one controls. Property includes that which facilitates life, as part of a universal right to self-preservation.Footnote ¹⁶ Self-preservation sometimes entails taking ownership through use, such as appropriating the food one consumes.Footnote ¹⁷

According to Locke, there are two means of establishing property ownership. In addition to appropriation or use establishing ownership (like the food example),Footnote ¹⁸ one appropriates property through labor. One’s work belongs to their body, and by laboring on something an individual “joins” with another element, making it their own.Footnote ¹⁹ Locke imposes limits on what one can appropriate, or join with labor and thus own, through the spoilage proviso: ownership is permissible “at least” when enough and as good is left for others.Footnote ²⁰ Property is limited to that which can be enjoyed (i.e. used), and not what can merely be amassed and left to spoil.Footnote ^{21 ,} Footnote ²²

At first glance, these restrictions appear to impose reasonable limits on acquisition. However, the civil society that codifies and protects property rights in Locke’s schema also participates in markets where goods can be monetized. Jeremy Waldron describes a route to override the spoilage proviso by transferring goods that are perishable into goods that are nonperishable (i.e. money).Footnote ²³ In Waldron’s words, “market exchange… explains how I can come to have more in my possession than I could possibly have labored [sic] for.”Footnote ²⁴ It also creates systems of ownership in which some own land that others toil, as serfs or slaves, who never attain standing as land-owners or property-holders through the mixing of their body and labor with the land, despite a framework in which this is the very process of acquisition.

In the seventeenth century, there were still unappropriated lands (though not all “unappropriated” lands were uninhabited lands), implying that anyone had equal opportunity to acquire land and no one could justifiably complain “about the subsequent prosperity of those who did”Footnote ²⁵ lay claim to a land and profit from it. However, this formulation presupposes a truly egalitarian distribution of capacities such that it is in fact possible for any individual to have equal access to acquire land. Yet, married women were not recognized as persons with legal standing to own property; anything that was theirs became the property of their husband. This idea of equal opportunity to acquire land also implies or assumes a shared vision of the value and role of, or the very possibility for ownership of, land as private property. Historical relationships between colonizers and indigenous populations, including in the United States and Australia, show this assumption of universal value and recognition of territorial ownership is false.Footnote ^{26 ,} Footnote ^{27 ,} Footnote ²⁸

Although Nozick mines Locke for his own political theory, he offered an absurd example to undercut Locke’s “mixing” criteria for the appropriation of property. Nozick asks: if he owns a can of tomato soup and dumps it into the ocean, does this mean that he now owns the sea?Footnote ²⁹ There are at least two ways in which Nozick’s thought experiment does not track onto the Lockean program. One is that it is unclear what labor is being mixed with the land in this example, other than opening the can of soup and holding it to pour. Nozick allows for the prior ownership of the can of soup to do the work of productive labor. Additionally, for Locke, the mixing of labor with land is a means of adding value to the land.Footnote ³⁰ In Nozick’s imagined scenario, no value is added by mixing the tomato soup with the ocean, and it arguably does harm as a form of pollution.Footnote ³¹

However, Nozick’s absurd challenge to the Lockean model of property points to how quickly questions arise regarding the foundational assumptions inherent in Locke’s account. Carol Rose underscores a puzzle for the original acquisition of property necessary for ownership: Locke’s proposal for the mixing of labor to create property nonetheless requires a preexisting theory of ownership.Footnote ³² Even if the right to property is granted as part of natural law, the idea that mixing labor creates property appears to be a theory of ownership that is either an interpretation or extrapolation of natural law.

Judith Jarvis Thomson observed: “the world was not created with its contents already owned: ownership has to be acquired in some other way” that does not rest on the assumption of prior ownership.Footnote ³³ Locke’s account of adding value to something is insufficient for establishing ownership over what was not previously owned. Thomson rightly asks: “why not conclude that, thanks to the labor-mixer, something still unowned now has more value than it formerly did?” For Thomson, acquiring property by improving it does not necessarily entail ownership.Footnote ³⁴

Initial acquisition is at best a puzzle, and at worse an unjust taking, built on histories of oppression, subjugation, conquest, and colonization. Rose and Thomson both address the problems of initial acquisition—though their conceptual remedies do not resolve primary problems of conquest and oppression. Rose suggests that a common-law approach would share certain features of both a labor and a consent theory.Footnote ³⁵ If “possession or ‘occupancy’ is the origin of property,” there remains a problem for what to do about things that are abandoned, lost, or found, and a larger problem of what even “counts as possession” or why it would be a “claim to title.”Footnote ³⁶ Rose instead focuses on the act of taking possession as a “kind of statement” or “communication” which is a form of notice-giving that one has taken possession. Stating that something “is mine” is a means to acquire ownership when said in a way that others understand. The law then protects this ownership from others who might counter-claim that it is theirs.Footnote ³⁷ The act of taking ownership is expressive and communicative, and possession is a relational enterprise.

The communicative act of taking possession is a form of common law and establishes the rights protected by common law (in contrast to Locke, who saw the formation of civil society as establishing laws that protect individual’s natural rights, but not as originating these rights themselves). Communicating property claims means that “others will know that they should deal with me directly if they want to use my property. We can bargain rather than fight, and through trade,” property will “come to rest in the hands of those who most value it.”Footnote ³⁸ Or, as the case may be, it will come to be held by those who are in a position to best express value and claims over the property.Footnote ³⁹

Rose’s approach presupposes a society in which every member is both a full member and has an equal voice in expressing claims or bargaining for property. In practice, under conditions of oppression and exclusion, this may often not be the case. But according to Rose’s idea of expression, common law is also a form of positive law, under which the terms of the legal structure are being established through the practices, and codification of those very practices, in the society. The laws in effect are those the society recognizes as in effect.

Thomson takes a directly positive law view of property. She rejects three prominent rationales for the initial acquisition of private property including a “first come first served” principle that justifies adding value as a means to establishing ownership insofar as one would not invest in adding value to something unless it is possible to become its owner,Footnote ⁴⁰ and the idea that it would simply be efficient to adopt a set of rules for the convention of ownership.Footnote ⁴¹ The third approach is a “Jointly-Owned-from-the-Outset Thesis,” but Thomson notes that if property is jointly owned by all of mankind then it is not clear “how private property can have arisen from the unowned, and even less clear if labor-mixing is to do the explanatory work.”Footnote ⁴²

Thomson offers an Ownership Has Origins thesis, which justifies current or recent acquisition of property through just transfer, but does not solve the problem of initial acquisition. It merely indicates that at some point, property was initially acquired (this is the origins part of the thesis), and once it was acquired, it can be justly transferred according to a recognized legal system that adjudicates said transfers. On this view, property is necessarily institution-based and cannot be prepolitical or preinstitutional.

Systems of law give meaning to property, and Thomson notes that laws could do so justly or unjustly. However, it cannot be assumed that property laws are just simply because they are the laws. Footnote ⁴³ It remains, therefore, an open question as to whether a legal system in place is just or efficient, but recognizing a legal system’s institutional warrant is a necessary condition for any criteria of property ownership. This positive law account is not dissimilar from how Rose treats common law—as acts and then texts that define relationships between persons and property, as well as humans or human institutions (like states) and nature or land (and state territory).

Although Thomson persuasively argues in favor of rejecting natural law theories of property, she does not resolve the problem of first acquisition of property to initiate a system of ownership. The convention of property first must be established in order to create the possibility of property rights and property holdings. The codified mechanisms of property rights and laws then mask the ways in which these contingent systems reflect and reproduce structural inequality: those who came to (unjustly) own something in the first place are then in a position to (allegedly justly, based on systems of legal transfer of goods) pass on ownership and control to others through inheritance or purchase, privileging those who reap the benefits of past injustice, while continuing to exclude those (individuals or groups) who were, and continue to be, the victims of unjust acts and exclusions.

This is a shaky foundation on which to build an empowering account of bodily autonomy, especially for individuals and groups who have often been the targets of injustice, and have historically lacked sociopolitical agency, such as women-identifying persons laying claim to reproductive rights and justice. Yet, political libertarianism deploys a self-ownership thesis that emerges out of social contract theory and property law. And self-ownership, on the surface, shares affinities with a standard biomedical account of autonomy.

Would a reconceptualization of property respond to these concerns? Maybe. In some non-Western cultures, property remains held in common rather than appropriated by individuals. In other settings, property has been traditionally a matrilineal institution, with women inheriting and controlling property, not men. Rosalind Petchesky reimagines property in light of these kinds of cross-cultural observations.Footnote ⁴⁴ Petchesky observed a common rhetoric of “owning” or “controlling” one’s own body in the feminist movements of the 1990s, sharing the worry raised in this paper that such rhetoric rehearses patriarchal norms about property and control rather than undertaking a radical feminist reimagining of norms.Footnote ⁴⁵

Her own project looks at “different cultural moorings” of property to “rethink the meanings of ownership and thereby reclaim both a feminist idea of bodily integrity and a radical conception of property at large.”Footnote ⁴⁶ She contends that property did not necessarily have patriarchal connotations until Locke gave his patriarchal account.Footnote ⁴⁷ In contrast, she notes that among the Daulo women from the highlands of New Guinea, women do not own their bodies, as much as they own the “reproductive and productive functions through which their embodiment is socially configured. For them, ownership is a relationship of caretaking and collective authority over resources.”Footnote ⁴⁸

Petchesky observes that “owning our bodies depends integrally on having access to the social resources for assuring our bodies’ health and well-being” and thus “self-ownership and proper caretaking go hand in hand with shared ownership of the commons.”Footnote ⁴⁹ She takes this argument as reason for all health-related goods, including social determinants of health, to be held in common. Furthermore, she claims that “we must reconnect our self-ownership to our right to communal resources.”Footnote ⁵⁰ What happens if we adopt Petchesky’s view that the goods of care, healthcare, and the conditions necessary to achieve care be held in common? It offers a strong conclusion, though one nonetheless built on faulty premises.

Petchesky’s view remains indebted to the idea of ownership through labor: she cites reproductive labor as producing ownership rights. It also contributes to, rather than resolves, a tension over what is uniquely owned and what is not. It looks like bodies can still be self-owned on her view, but the conditions for self-preservation are held in common. Whereas for Locke, we owned our bodies, their labor, and that which is necessary for self-preservation, Petchesky seems to suggest that we own our bodies, our labor (including reproductive and care labor), and this embodied ownership and labor is how we share in the common goods necessary for self-preservation. Holding goods of self-preservation in common, as public or collective goods, is indeed a radical feminist reimagining of norms. Yet, this form of joint self-ownership and shared-ownership creates an unclear division between what property can be uniquely controlled (one’s own body) and what property is meant to remain in common (most everything else).

Why are bodies not held in common as well? Particularly when bodies are required to support the health and well-being of others bodies? Reproductive labor generates ownership on Petchesky’s view, but where does this leave choices or rights not to engage in reproductive labor? Her view looks like it has precarious implications for reproductive rights and who has the right to govern the body of a pregnant person. Does a pregnant person have an obligation to share their body in common with the fetus inside it once it engages in so-called reproductive labor? This same labor that makes one an owner is also doing a service for another (or future other) and for the community (to produce future generations). How then is the reproductive body to be governed, and would it be governed within the commons as part of the collective interests of the society?

Reproductive labor is only the most extreme example of how care is embodied. But other forms of care work also rely on the body and embodied labor of others. Again, healthcare is an intrinsically interpersonal enterprise. We can own our bodies for the labor they produce, including reproductive work, and other forms of care work. Yet, we are all also at times reliant on others and their embodied labor and care for our own self-preservation. The right solution to this tension might be to place property in common (including the property of our own bodies that are necessary for the care of others). However, thinking outside of or beyond property in connection to care work and our relationships to others, their health, and their care would better move us out from under historically unjust and patriarchal norms and institutions.Footnote ⁵¹

Selves

The second concern about self-ownership revisits earlier remarks regarding concepts of autonomy, both in biomedical and sociopolitical settings. We do not merely possess absolute control over ourselves, it is a status granted to us by others. As a social and relational phenomenon, autonomy is produced through the process of others recognizing us as autonomous individuals. It also means that some of us are not recognized as (fully) autonomous by our sociopolitical communities. A self-ownership account risks perpetuating rather than rectifying unjust failures of recognition that lead some individuals and groups to be regarded as less than fully autonomous.Footnote ⁵² This yields a concern about the “self” component of “self-ownership.”

This worry has two elements. One relates to the Lockean notion of labor establishing ownership: some people’s labor was not on behalf of their “self,” but rather on behalf of the person who controlled them. In Locke’s time, one took ownership of land by laboring it. Yet, serfs and slaves labored land that did not make them property holders. Their bodies and labor were owned, and thus their labor produced the property rights of someone who was already in a privileged position to be in ownership and control of both persons and land. Patricia Williams traces her own family’s history of sale in the United States in her book The Alchemy of Race and Rights, and displays the feminist tension with the rhetoric of ownership when she engages the language of ownership to talk about feminist boundaries around the self in the same text discussing the ownership and sale of her family.Footnote ⁵³

Another side of this worry about the concept of “self” in self-ownership is well-expressed by Anne Cudd when she indicates the ways in which the “self” is “metaphysically constituted by its connections with other selves” and therefore cannot be “neatly separated from other selves.”Footnote ⁵⁴

Self-ownership is not merely individual autonomous control but is also a product of social relations and social systems that regard some as self-owners, but fail to regard others as such. As Cudd notes, “self-ownership is a socially privileged identity that is not achievable by all. The self-owner must own some things aside from a body and have some skills or abilities in order to live as an owner,” whereas those who exist in socially oppressed groups must “make their bodies available to the privileged at a cost much less than if they were social equals” through their labor.Footnote ⁵⁵

This observation has implications for self-ownership and for libertarianism. Cudd thinks that a relational view of the self opens up a possibility for a relational view of libertarianism compatible with feminism. Although she says that self-ownership might be appealing for accounts of bodily autonomy, it does not seem that the libertarian brand of self-ownership offers a strict boundary for protecting bodily integrity because it allows for boundary crossing as long as there is appropriate compensation.Footnote ⁵⁶ According to the “cross and compensate” thesis, one’s property can be infringed upon so long as one is retroactively extended appropriate compensation.

Such a view cannot square with a view of bodily integrity that would require individuals to grant permissions in advance of their bodily integrity being compromised. Cross and compensate may work with intrusions against externally held property: a fellow patron at a coffee shop spills coffee on your coat and pays the cleaning fee, or your neighbor accidentally drives over your flower bed and pays to have it fixed.Footnote ⁵⁷ It might be sufficient for a mundane situation related to bodily integrity as well: a person standing in front of you in a queue steps on your toe accidentally and shows appropriate remorse by apologizing.

But in cases of medical or sexual ethics, where we value autonomy and bodily integrity and show respect for others’ autonomy by seeking consent to engage them in a medical or sexual context, cross and compensate would be not only insufficient and inappropriate, it looks like it would also be wrong and potentially harmful. A doctor could not vaccinate a patient without obtaining consent but then “compensate” by deducting the fee for the vaccine and office visit from the medical bill. And a person could not perform a sex act on another person without their consent but then “compensate” them by buying them a meal, a luxury item, a necessity, or paying out a lump sum of money.Footnote ⁵⁸ The former would be battery, and the latter would be rape.

One reply to the worry that self-ownership is a myth of autonomy, that is in line with Cudd’s observation that we are always already in relation to others, is to merely acknowledge relational accounts of autonomy but otherwise maintain the shape of self-ownership. Cudd does a version of this by modifying what the world “self” means, arguing the self is always connected to others and therefore when we read “self” we ought to read it as a “connected-self.”Footnote ⁵⁹ On this view of a connected self, Cudd holds it is possible to reconcile libertarianism with feminism. She says that “maximal connected self-ownership rights look somewhat different, however, from the standard libertarian version of maximal atomistic self-ownership” for “the connected self must control its body in the sense that it must be able to preserve its bodily integrity against all forcible incursions; it must have the right but also the means to do so.”Footnote ⁶⁰

These first two concerns about engaging a “self-ownership” view to support reproductive justice have been about the very nature of who is included or excluded from ownership and who is included or excluded from being recognized as a self. Both worries reveal how accounts reliant on ownership and control might be better reimagined as relational, intersubjective, and interdependent. Interdependent intersubjectivity relates to the third, and most significant, concern about the self-ownership thesis pertinent to any form of healthcare, but especially reproductive care.

Negative Liberty and Positive Rights

Self-ownership entails rights to bodily control, self-determination, noninterference, a basic program of autonomy, but also only negative rights. Fruitfully, it supports a stance of “my body, my choice” in which the possessive is doing work to indicate self-control, that we own our own bodies and retain exclusive control over them. Yet some choices of what to do with one’s own body rely on others. A person who owns herself cannot be forced by anyone else to have a baby or an abortion. But what are her rights to access reproductive (or any other form of) healthcare? Such access is necessary to guarantee the freedom to self-author reproductive choices.

The appealing line of thought liberal feminism identifies in self-ownership as a thesis for bodily, and especially reproductive, autonomy is that it keeps individuals, including women, as the self-determining agents of their own bodies. Cudd notes that it also suggests a way out of “lopsided, unchosen obligations,” that might most often fall on women and other oppressed groups.Footnote ⁶¹ No one else is anyone’s owner. Yet, self-ownership is founded on a system that allowed for certain people to be self-owners, whereas others remained owned, often out of lopsided and unchosen circumstances.

Self-ownership generates rights of noninterference but does nothing to protect those who, as Cudd rightly remarks, “cannot care for themselves.”Footnote ⁶² A negative rights framework does nothing for positive rights to healthcare. An individual who needs an abortion cannot independently fulfill that need. She can make the choice for herself but is reliant on others to follow through on the choice: either by performing a surgical procedure or by developing, manufacturing, prescribing, and filling the prescription for a medication to self-administer.Footnote ⁶³

This is true of all forms of healthcare. Healthcare is an inherently social enterprise, dedicated to caring for others. Noncontentious medical procedures, like an appendectomy or cancer surgery; treatment with antibiotics or chemotherapy or hemodialysis; and administration of vaccines and other forms of preventative medicine all rely to varying extents on the care of others, both within and outside medical professions (cancer treatment might entail a good amount of family or friend caregiving when a patient is too weak to care for herself; vaccines require someone to develop and produce them, and hemodialysis might rely on transport by someone else to get to the clinic for treatment and a medical team who provides it).

If reproductive rights rely on self-ownership alone, then it looks like there is not a true right to healthcare because no one is obligated to care for anyone else or provide healthcare in the name of these negative rights. Public health measures become further obsolete on this ground because they almost always entail some positive duties toward others or the constraining of individual rights and freedoms for the greater good, as the current COVID-19 pandemic makes painstakingly clear. In the case of COVID-19, self-ownership suggests that we ought to be free from government intrusion on our freedoms to wear a mask or not or to keep our small business open, or not. Yet, our negative liberties can be reasonably curtailed when exercising them causes harm to others,Footnote ⁶⁴ and this arguably justifies at least some government social distancing mandates designed to keep ourselves and others free from harm.Footnote ⁶⁵ At the same time, we are witnessing that the most minimally invasive mandates are failing to mitigate COVID-19 infection and death.

This essay does not intend to stage a full argument against libertarianism, so much as the central principle of self-ownership associated with it, especially as a tool for healthcare rights and reproductive justice. There may be good reasons within political philosophy to accept a libertarian agenda. But there are also good reasons related to healthcare justice in general and reproductive justice in particular, to challenge a theory that takes, as either a premise or a conclusion, strong notions of self-ownership to justify only negative rights. A self-ownership or libertarian model for rights cannot adequately accommodate a right to care. A self-ownership view will keep the most vulnerable people vulnerable, by not generating rights to and expectations of care from others. This view does not necessarily require a strong state to be the institution primarily responsible for these rights, but it suggests that protecting rights to healthcare, and reproductive care, requires more than negative liberties: it requires positive obligations of care.

A Problem for Reproductive Justice

Feminism can mean many things, with different agendas. It can be a set of political commitments, activist commitments, or methodological commitments.Footnote ⁶⁶ Modifiers specify forms of feminism in ways that are both descriptive (second wave, third wave, and radical) and, at times, pejorative (white, transexclusive). On the surface, it seems feminism’s interest in reproductive justice connects easily to a liberal self-ownership thesis. Noninterference and bodily autonomy are part of a broadly construed feminist agenda that dismantles patriarchal and misogynist forms of oppression legislating (often quite literally) individual choices around sexual health, including contraception and abortion access.

Moreover, the idea that bodies are controlled only by their self-owners, that they do not belong to others who think some bodies are open for public comment, touching, or critique, corresponds with feminist values beyond healthcare justice and reproductive health access. Slut-shaming, fat-shaming, thin-shaming, cat-calling, hair-touching, pussy-grabbing, unwanted sexual advances, and sexual harassment are all arguably motivated by someone else’s sense of control over, or right to, another person’s body. A flip side of owning yourself is the retort: you do not own me—my body is not here for you.

So, it is understandable that a second-wave feminist rhetoric of “my body, my rights” and the idea of owning your own body as empowering for feminist and reproductive health care agendas persists. Planned Parenthood’s current “Bans Off My Body” campaign includes catch phrases like “when we own our bodies, we are powerful.” This all sounds good. Except that an analysis of property rights, of selves, and of ownership, suggests that for self-ownership to be generative rather than perpetuating oppression, and for self-ownership to be a successful tool for reproductive justice, we would need to reconceptualize property and possibly selves.

Property is an historically unjust institution. There is an intractable problem of initial acquisition that remains unresolved in the literature. Connecting bodily self-ownership to property ownership only muddies the waters of the already hotly contested debates regarding personhood within abortion ethics and politics. An antiabortion protester outside the United States Supreme Court during recent oral arguments over a Louisiana law requiring abortion providers have hospital admitting privileges (which the court ultimately struck down) held a sign stating “feminist since conception.”Footnote ⁶⁷ Not only does this demonstrate the range of views that can self-describe as feminist, it also shows that on one end of a personhood spectrum is the view that humans are persons from conception (and can, apparently, hold political views prior to consciousness).

Legally, it is generally understood that a fetus has no rights until birth,Footnote ^{68 ,} Footnote ⁶⁹ though it can certainly have interests. Joel Feinberg takes “no stand” on the “complicated question of the point of the onset of personhood,” though he accepts that at some stage, there is a “prepersonal fetus” that “has no actual interests,” and he goes so far as to say “no actual harm can be done to it while it is in that state.”Footnote ⁷⁰ Thomson’s famous violinist analogy defends abortion even if the fetus is always a person, though she disagrees that it is in fact a person at every stage of pregnancy.Footnote ⁷¹ Self-ownership only worsens an already fractious personhood debate: if ownership has origins, what (and when) are the origins of self-ownership? If, as already argued, property relies on a regress of legitimate transfer ultimately yielding an initial unjust original acquisition, what does this mean for an individual’s self-ownership origins? Does a fetus receive a just transfer of ownership from the pregnant person carrying it, and if so, from where does this transferred title originate? Are natural or divine law our best (suboptimal) options?

If self-ownership is merely a rhetorical device to convey self-determination, a sort of thin autonomy of choice we see in biomedical ethics, then, it makes sense when applied to sexual freedom, access to birth control, and decisions about abortion: these are choices or acts that ought to be undertaken intentionally, with understanding, and free from coercion. But again, sexual and reproductive health choices are not only made as discreet decisions, they are also made in the broader context of our sociopolitical situation and identities. A specific decision to obtain birth control or an abortion as a particular healthcare choice is one that can be self-owned in the sense of autonomously self-determined; we cannot use this same rhetoric to conceptualize healthcare, and especially reproductive, justice. This vision of self-ownership as autonomy, like the biomedical model of autonomy itself, is, as Kukla says, inadequate.

Moreover, reproductive justice also relates to reproductive potential: rights to embryos, gametes, and sperm, right to surrogacy, and parental rights of surrogates. It is complicated. Who gets to own their own or another’s body? Is this a fruitful line of inquiry? It is one that can be deployed on multiple sides of a debate, such as an argument by Walter Block and Roy Whitehead using a private property rights approach to argue against abortion rights.Footnote ⁷² A property-based analysis of reproductive rights perpetuates owner-owned relationships between individuals or groups. Pregnant people get to own their fetuses; adults get to own their eggs, sperm, or the embryos they create. Or fetuses are their own property in the person, colonizing the body that carries them, sometimes laying stake in this location without proper initial acquisition.

More curious are surrogacy relationships. These appear to skirt problems of initial acquisition by creating de novo a system of contracts and norms that establish the concept of reproductive property exchange: Money is exchanged for labor (work and birth), and genetic material does not change ownership hands although it may change embodied location. This in effect perpetuates multiple forms of owning others. Embryos and fetuses and babies are all “owned” by their genetic parents, rather than being property in their own potential or existing person. And surrogates are contracted out to genetic parents. Surrogates might own their own bodies, but this allows them to rent them out for use. The problem is not necessarily about the possibility of ethical surrogacyFootnote ⁷³ but more about the unsavory ethical ways in which we have to formulate these relationships if we resort to bodily ownership models.

The goal is not to downgrade reproductive rights, freedoms, or access, or to negate anyone’s self-determination regarding healthcare decisions, including reproductive healthcare choices—far from it. The intent is to show that a rhetoric of self-ownership may come up short in terms of realizing these rights. A self-ownership account relies on problematic concepts. Ownership relates to private property, with its oppressive history of exclusions, theft, and conquest. Conceptions of the self also face problems of inclusivity and marginalization. Both private property and selfhood risk underaccounting for our interdependence and the relational nature of ourselves and our practices. This is particularly important when realizing reproductive rights. For being able to self-own and author our reproductive choices is only one step toward reproductive justice. The other is having access to providers, services, and care. Whether we are realizing a right to terminate a pregnancy or to become pregnant with reproductive technology, once we own our choices for ourselves, we are reliant on others to share in their realization.