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Human Rights and Human Beings: The Law on Abortion and What it is to be Human

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Human rights are based on human beings. Discuss with reference to both the law on abortion and on the case of Airedale NHS Trust v Bland, House of Lords (1993). What it is to be human has been a philosophical, political, and religious debate that has lasted for centuries, and continues to this day. It is apparent that in order to determine the purpose of human rights, we must first determine what constitutes a 'human being;' that is to say, when does 'life' begin, and even, when does one's humanity end? I contend that there are no correct answer to these questions, merely opinions supported by arguments and on occasion the odd 'fact', scientific, religious, or otherwise. Every individual must answer these questions for his- or herself; however, in order to ensure that human rights are enforced it has become essential that the government take a stand regarding the answer to the aforementioned queries so that it may be known to whom these rights apply. In this essay I will refer to the arguments set forth by pro-life and pro-choice advocates alike, referencing the many podiums from which they stem, and consider case law applicable to abortion and euthanasia. I will also analyse the 18611, 19292, and 19673 Acts and their implications on women's rights, as well as the European Convention for Human Rights. In order to appropriately approach the title statement it is necessary to determine exactly what constitutes a human being. This task, however, is much easier said than done, particularly regarding determining the moment when human life, as far as human rights are concerned, begins. For the purposes of this essay, I will henceforth refer to human beings for whom human rights apply as 'persons,' which allows me to freely use the term 'human being' with reference to the biological body of a person, free from their individual personality, capacity for thought, and experiences.


In my opinion, as far as the law and application of human rights are concerned, I believe this point in gestation is about accurate regarding when a person's individuality begins and whether or not a woman should be entitled to an abortion. After this point I find it difficult to support the need for abortion outside of extraneous circumstances that have already been outlined in the 1967 Act. A very interesting perspective exists regarding when life as a 'person' begins with reference to the electrical output of the central nervous system. That is to say, human death, at least in the United States, is agreed to occur in many states at the point at which there is no longer electrical activity in the brain (or the brain has 'flat-lined'). In such an instance, even though the body may be sustained through various machines, the 'person' in all his conscious and meaningful being no longer exists, and is considered dead. It seems logical to say that if life as a person ends when electricity has stopped flowing through the brain, then life as a person must begin when this same electrical functioning occurs for the first time, around 22 weeks gestation. It is arguable that at this point, because higher levels of functioning have begun to develop, the foetus may be capable of greater sensory perception and even possibly feeling, and therefore it is possible that the deadline the Abortion Act sets may be a couple of weeks too late. I would therefore argue that life as a person, for the purposes of the legal application of human rights, ought to be considered at the moment of gestation during which the brain's higher functioning begins to work: 22 weeks. After this point I believe the law should remain extremely stringent regarding the rights of the unborn child, as it is capable, particularly from 24 weeks onwards, of sustaining a viable existence independent of the mother.


differ greatly from the action of 'inflicting' death through merciful mechanisms? When the patient is in a position to die regardless, particularly when medical treatment is stopped or when the individual would have committed suicide but is physically incapable of doing it for himself, does omission and action truly make that much difference? According to the law as it stands it does, particularly because acting in such away as to accelerate death is considered to be an act of murder at best; why is this not the case in places like Belgium and Switzerland, where euthanasia has been legalized and the amount of assisted deaths has not fallen down a 'slippery slope' as many euthanasia protestors fear? Ronald Dworkin, as well as the House of Lords, approached the issue of a person's right to death from a three-fold perspective: self-determination (or autonomy), best interests, and sanctity of life. Hoffman L.J. recognises this in his judgement in the House of Lords: "Thus it seems to me that we are faced with conflicting ethical principles. On the one hand, Anthony Bland is alive and the principle of the sanctity of life says that we should not deliberately allow him to die. On the other hand, Anthony Bland is an individual human being and the principle of self-determination says he should be allowed to choose for himself and that, if he is unable to express his choice, we should try our honest best to do what we think he would have chosen."14 The three aforementioned points of the morality triangle are difficult to place in order of relevance when determining the fate of an individual's existence as a human being. However, if and when we are forced to choose I contend that the method that best supports a person's human rights, particularly as set out in the ECHR, is that method which supports first autonomy, then best interests, and then sanctity of life. That is not to say that any one of these principles ought to be entirely ignored for the sake of another.

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