Is the law on abortion in this country in a satisfactory state at present?

The first regulation of abortion was found in the case R v Bourne [1939] 1k.B.687.

Mr Bourne was an obstetrician who was prosecuted under section 58 offences against the person Act 1861 ‘unlawfully using any instrument’ with intent to procure a miscarriage. It was accepted that the word ‘lawfully’, implied there were circumstances in which it was lawful to perform an abortion for some other therapeutic purposes. Macnaughten J said ‘if the doctor is of the opinion that continuance of pregnancy will make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother’. If ‘preserving the life of the mother’ is taken to include the prevention of serious, but not less than serious, injury to health, there is the difficulty of deciding whether a threatened injury to health, not involving a risk of death is sufficiently serious to justify what would otherwise amount to the offence of ‘child destruction’.

Mother’s autonomy

The most common disagreement to the most common type of Abortion (i.e. abortions under s (1)(a) of the abortion act that take place for minor therapeutic or social reasons 97% in England and Wales took place on these grounds in 1996) is Autonomy of the pregnant woman; this involves the question of whose choice abortion should be?

Re S (refusal of medical treatment) [1992] 4 All ER 671. 

In this cases S was admitted to hospital with foetus in position of transverse lie, an elbow protruding through the cervix. She refused caesarean section, backed by her husband. The consultant testified it was a question of minutes rather than hours and that this was a ‘life and death situation’. The hospital applied for declaration, saying that the baby could not be born alive without an imminent risk of rapture to the uterus. The Law on caesarean section (like any operation) says without consent the operation will constitute an assault and that a mentally competent adult has every right to with hold consent. The case of Re T says ‘only possible qualification to this principle might be, ‘a case in which the choice may lead to the death of a viable foetus’. President of the Family law division granted the declaration as sought and the caesarean was performed. S’s baby died shortly afterwards and her own condition was reported to be critical following the operation. In Sir Stephens reasoning it seems to go no further than noting that this point seems to have been left open in Re T, judging the caesarean to be in the best ‘medical’ interest. The main issue here seems to be that the life of the foetus over rode the mother’s life. Re S has provoked discussion in cases such as Morgan (1992), Young (1993), Bridgeman (1993b, 1993c), Wells (1993) and Draper (1993). Since this case the ethical committee of royal college of obstetricians and Gynaecologists have since decided the life of the foetus should not give doctors grounds for overriding a woman’s explicit refusal to undergo caesarean section (The Guardian, 13 April 1994). Morgan adds commentary on this case i.e. if a non-consensual caesarean section can be described as doing the mother no harm; it is difficult to imagine how other possible interventions to the benefit of the foetus can be refused.

Fathers right

As the father contributes substantially in the process of pregnancy, it is only fair to look at his position in terms of pregnancy. Looking at the common law it can be seen that generally a father has no power to stop a mother aborting her baby. In Paton v British pregnancy advisory services trust [1979] QB 276. It was held that the father couldn’t, by injunction stop his wife from under going a lawful abortion. This was upheld by the European court of human rights, although the European court showed concern in the area of ‘foetal viability’, which remains an area of potential doubt. They felt that in the case of a viable foetus the father should maybe have some right.

Impaired foetuses

Currently Abortion law discriminates against impaired foetus. Helen Watt Pro-life society for the protection of the unborn child and roman catholic centre for health care ethics and Ann Furedi, pro-choice employed by British pregnancy Advisory service, have agreed that the law shouldn’t find aborting ‘able-bodied’ foetuses morally different than impaired foetuses and the laws treatment of the two should be the same.

The two disagree only on the treatment of the two types of foetuses. Opinion polls have found that disability pregnancies are acceptable. More so among 65 year olds 75% approve of mental disabilities and 69% for physical disabilities. The rating is lower among the ages 15-24, 50% for mental and 40% for physical disabilities births.

There have been 2,000 terminations per year for foetal disability several hundred after 20-week gestation. In 1997 1,724 on the grounds of disability alone (612 after 20 week), 129 on disability combined with one other qualification set out in the Abortion Act (14 after 20 weeks). The Abortion Act 1967 section 1(1)(d) again says that foetal disability abortion may be performed by two doctors who agree that there is ‘substantial risk that if the child were to be born it would be seriously handicapped’. Since 1990, there has been no time limit for termination performed on this ground. Morgan expressed ten years ago, that this ground of abortion is lacking in sustained critical analysis. The arguments that justify the criticism:

(1) The interest of the child-to-be (2) a comparison with an alternative possible non-disabled child, and (3) the interest of the pregnant woman (as mother-to-be).

The conceptual difficulties associated with the action for wrongful life would largely disappear if, first, the Abortions act 1967 section 1(1)(d) the ‘eugenic clause’ were accepted as having been drafted in the foetal rather than the maternal interest section of the act. There three arguments that attempt to justify the abortion of impaired foetuses.

The ‘foetal interest’ argument tries to justify the disabled foetus by saying its termination will save it from a life of suffering, a kind ‘foetal euthanasia’.

Arguments against foetal interest are:

That it only applies to a very narrow range of cases. These are cases where the likely alternative to termination is a child whose quality of life is not merely low, but negative; that is the child would, quite literally, be better off dead, of better off never being born. Glover says ‘a blind person has a less favourable start in life than a normal person, but it would be absurd to say that his life is likely to not be worth living’.

Secondly, the foetal interest authority is only obiter dicta, it was held in Mckay v Essex AHA [1982] that a doctors inability to detect the rubella virus which resulted in Mrs McKay giving birth to a disabled child enabled her to sue for ‘wrongful birth’, but not for wrongful life. The court would not accept that it could ever be in some ones best interest not to exist, inconsistent with section 1(1)(d). Also in the recent conjoined twins case, the court of appeal rejected the finding of the family division of high court that Mary a weaker conjoined twin who was only sustained by her sisters blood flow and who would almost certainly die in a matter of months, ‘had no continued interest in living’. Johnson J reasoned that Mary’s state was ‘pitiable’ and, although it was impossible to know whether she was in pain, the thought that her stronger sister would start to move around dragging Mary behind her was ‘horrendous’. Ward L.J. disagreed. He held that the weaker twins life did have a value to her, even though she had severely limited brain function and was incapable of crying expressing pleasure or pain. In this case then the courts have judged that even a few months of pitifully low quality of life to be preferable to non-existence.

The second argument for disability abortion is the ‘Replacement argument’, it says babies should be able to be aborted for the good of society (it should be noted that within this argument a foetus has a low moral status), but also if a baby is aborted the mother must give birth to another to replace it. This argument fails, as how can mother be expected to give birth a second time after her first ordeal. The mother may simply not want another child.

The final argument is the ‘Parental interest argument’, which justifies aborting a disabled baby, by giving reference to the interest of the biological parents, especially the woman. The strain of caring for disabled may be substantially more than non-disabled. This is seen by most academics as the best rationale for justifying Section 1(1)(d). This seems to be supported and in line with the Abortion act, which views disabled abortions as generally undesirable but permissible in exceptional circumstances.

Morgan notes that if ‘foetal handicapped’ ground is to be construed in terms or ‘parental interest’ then it is superfluous and unnecessary to repeat the provisions in S1 (1)(c) ‘women’s mental and physical health’ combined with s 1(2) doctor takes account of the woman’s ‘actual or reasonably foreseeable environment’.

Advocates of the disability abortion also highlight, a Disability Discrimination objective, saying most problems faced by parents are social discrimination rather than impairment.

The position of abortion in other countries

The position in Denmark to abortion is that women have the right to an abortion in the first trimester (three weeks). This is a very liberal approach.

In Canada they, also support the rights of a mother in regards to the early stages of pregnancy. The law there has ruled that a foetus is not a legal person.

In Scotland again they have recognised in Kelly v Kelly 1997 SLT 896, that foetuses have no right to continue to exist in the mother’s womb.

In Germany there is a view from both a pro- life and choice perspective. In East Germany they allowed for abortion in the first 12 weeks, in West Germany abortion was illegal. The two had to reach a compromise since the Treaty on German unity came into force in 31st august 1990. Art 13 Family and woman paragraph 4. The treaty allowed for exceptions on specific circumstances dependant, in large part, on the stage of the foetuses provisions. In East Germany there was approximately 33% pregnancies terminated, interestingly they were as frequent in the West. The compromise was passed two years after reunification, the federal parliament passed law i.e. abortion would be allowed within three months, and there would be social counselling three days before termination. After deliberation the constitutional court said this failed to meet the minimum standard, of the protection of human life as set out in the constitution. They felt this could only be satisfied if the state placed a fundamental legal duty on the mother to carry the foetus to term. Interim measures were laid down to make consensual abortion illegal but not subject to legal sanction, if performed within the specified limits. This involved the consultation of a Doctor within the first twelve weeks, who would give priority to the protection of the foetus. After the twelve weeks it would be possible to have an abortion in cases where the life or the health of the woman is threatened, or if the foetus suffers from serious defect. This reinforces that in the context of abortion, there is some acknowledgement of foetal interest. This continued until 1996, and then new law came into force.

The Ethical debates

The issues that have been identified that are tackled using a pro-life and pro-choice perspective. What is a ‘human being’ and how it is different from a ‘person’? Does the foetus have legal rights and interests and the right to life? Is the mother’s autonomy, the deciding factor in whether a foetus should die? Does Abortion only affect those taking part, or is it a concern for society?

Dworkins has said that from a ‘theological, moral, philosophical and even sociological discussions of abortion almost all presume that people disagree about abortion because they disagree whether a foetus is a person with a right to life from the moment of its conception, or becomes a person at some point in pregnancy, or does not become one until birth’.  And whether its right should come before the mother’s.

What is a ‘human being’?

Michael Tooley makes an interesting distinction between the terms ‘human being’ and a ‘person’ being used in the ethical debate. It has been said ‘it is a fact that the Negro slaves were human beings’. But a ‘person’ would be someone who had self-consciousness. This would qualify them for a serious right to life.

Thomson who is in favour of the pro-choice argument is ‘inclined to… agree that the foetus has already become a human person well before birth… by the tenth week, for example. It already has a face, arms and legs, fingers and toes; it has internal organs, and brain activity is detectable’. 

The pro-life (conservative) views:

They say abortion is permissible, but they feel that it is up to the woman to make the choice whether she is to have an abortion. Catholic: Governor Mario Cuomo of New York among them, as he made explicit in his well-known speech in 1984 at Notre Dame University in Indiana. This idea is based on the idea that they feel that the state and the church are separate and so people are entitled to the privacy of their own decision.

Although conservatives would agree with a ban on abortion by the Government,

They would recognise the need for abortion, if it were to save the life of the mother, which would be in self-defence. National opinion poll by the UK’s main polling agency MORI found that 64 percent of those asked agreed that: abortion should be legally available to all who want it. 25 percent disagreed. The remainder neither agreed nor disagreed or said they did not know. The proportion of those who agreed had increased by 10 percent since 1980. This is inconsistent with their belief a foetus is a person. Few also believe it is ‘justifiable for a third party, even a doctor, to kill one innocent person to save another’.  

The ‘extreme view’, here is that abortion is never right not even to save the life of the mother or because of her misfortune e.g. being raped, or laid up in bed. Thomson’s answer to this is the ‘famous violinist example’ she says imagine, a violinist who has a fatal kidney ailment. The family of music lovers has canvassed all available medical and found that ‘you’ alone have the right blood type to help. They kidnap ‘you’ and plug the violinist circulatory system to yours, so your kidneys can be used to extract poison from his blood as well as you own. You are told to unplug your self would be to kill the violinist, but never mind it is only for nine months. The reasoning her is that if it is felt that this is an unfair situation how can the rights of the foetus be absolute.  

The Pro-choice (liberal) views:

First, they reject extreme views about abortion being unproblematic. They say that abortion is always a ‘grave moral decision at least from the moment at which the genetic individuality of the foetus is fixed and it has successfully implanted in the womb, normally after about 14 days’. They do not feel abortion is permissible for trivial, frivolous reasons, it most be to prevent serious damage of some kind. It is wrong to have an abortion, in order keep a seating reservation.

Secondly, they say that abortion is justified where foetal abnormality has been diagnosed e.g. thalidomide babies or Tay-Sachs disease and in the case where the child would have a brief and frustrated life, pollsshowed that 70 percent agreed; in some cases it would be wrong to bring this type of child into the world.

Thirdly, they say a woman’s concern her own interest is reason enough for an abortion. If ‘…the pregnancy would be permanent and grave for her or her family’s life e.g. leaving school, giving up a chance for a career or satisfying and independent life.

Finally, they say that the state has no business intervening even to prevent morally impermissible abortions, because the question of whether an abortion is justifiable is, ultimately, for the woman who is carrying the foetus to decide. The state my oblige her to discuss but it should not decide for her. Obviously inconsistent with the assumption that at an early-stage the foetus is a person with rights and interests of its own.

Abortions affect on society

Dworkins has highlighted an issue of intrinsic importance that seems a very plausible point for societies concern for abortion. He talks about the foetus being intrinsically important, by using the example of a painting. The thought is that a great painting is valuable and must be respected because of its inherent quality as art, and not because people happen to enjoy looking at it. So if the life of a human organism, including a foetus has intrinsic value whether or not it has personal value, ‘if we treat any form of human life as something we should respect and honour and protect as marvellous in it self the abortion remains morally problematic’. If it is a desecration to destroy a painting why shouldn’t it be a greater desecration to destroy something with an intrinsic value, surely vastly greater?

In light of the ethical debate towards abortion I find my self in agreement with Dworkins, in so far as, there cannot be one ethical position to satisfy all situations. I strongly believe in the pro-life approach, Foetus’ should not be terminated. On the other hand it is not my choice to make a decision of such importance on behalf of another. At no time can it really be justified to false a person to do something against their will. In regards to the law and the legal stance taken on abortion, from the information gathered, it can be concluded that the law is in a satisfactory state, in most parts.

The mother now has more rights to here body, which means she may terminate a baby because she thinks it is necessary, even though others may not agree with her decision.

Although I feel there needs to be clarity as to when the courts may override her decision, and at what stage the foetus may become a person.

As can be seen above, within the foetal disability arguments abortions are generally seen as undesirable but in exceptional cases they may be permitted. This may seem correct in theory but as the experiences of life show abortions for exception is not definitive requirement, so abortion will inevitably take place for reasons which others may not like, for example aborting for no apparent reason other than the baby is not wanted.  

Polls from the conservative forum of abortion also seem to agree for the majority that abortions should be legally available to those that want it. This indicates a respect for others positions.

It can also be seen that before the abortion act, it is a fact that a large number of back street abortions were carried out, which meant dangerous procedures being under taken. It is also evident that the introduction of the abortion act did not lead to a rise in abortions. Wordcount 4,212

---