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

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Lauren Eser St#07985459        LW509 Human Rights        3479 words John Fitzpatrick

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 1861, 1929, and 1967 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. First I would like to consider when life as a person begins.  There are a large number of stances regarding this subject, the first of which is that of many pro-life individuals: that human life, and indeed the beginning of the individual’s being as a ‘person,’ begins at contraception.  The view here is that once the zygote (or fertilized ovum, as it is more commonly known) is formed, it carries a unique D.N.A. that it will carry with it for the rest of its life, and that the zygote has the capacity to develop into a newborn child.  The creation of the zygote is the point that most of the Christian faith believes the person’s life begins. Pope John Paul II said in Washington, D.C.:  "...all human life -- from the moment of conception and through all subsequent stages -- is sacred, because human life is created in the image and likeness of God."   It is contested by those that believe that a person’s life begins at conception that to say that a human being is considered as such any later than conception creates a ‘slippery slope’ that allows for abortion, or in their eyes the ‘murdering’ of innocent lives.  It is understandable that if this view were accepted that human beings are entitled to full rights at conception, and that all abortion would be murder; if this were not so, however, then abortion should not be illegal.  The law today, however, states that abortion is illegal, save in those circumstances outlined in the 1967 Act, which states under s. 1:

“(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith--

[(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped].

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) [or (b)] of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment.”

However, the law in itself, though vastly improved upon previous legislation regarding this topic in order to incorporate a more medically sound and socially accepted stance, is still very much up for contention (a point of which I will be making later in this essay).  The Offences Against the Person Act 1861 is still in force, and sections 58 and 59 of this act outline rather plainly that abortion in and of itself, through whatever method, is an illegal practice; I am sure many who support the belief that life begins at conception would have preferred this Act to remain unmodified.  However, to support this view would be the same as completely disregarding the autonomous and unarguable existence of human rights that the already existing ‘person’ (the mother) holds, and these rights ought to have, and for the time being do, more sway than the potential rights of the foetus for life.  This sentiment is echoed in the case of Vo v France, for which it was concluded after analysing various cases by the European Court that:

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“the unborn child is not regarded as a “person” directly protected by Art.2 of the Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the mother's rights and interests.”

The court’s alternative perspective regarding when an individual becomes a human being lies on the opposite end of the spectrum: that a person’s life and rights as an individual, as far as may definitively be assessed, begins at birth.  In this case, two women with the same name went to a clinic, one who wanted an abortion, and the wrong woman received ...

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