For some, the respect for human life leads them to believe that even
contraception should be regarded as ethically unacceptable. Others consider
that human life and
therefore respect for its sanctity begins only at birth.
How does the law in
Would you advocate any change?
“ It is equally as heinous intentionally to kill
a human being in existence at fertilization, as to kill a larger pre-born
child” (Nellie Gray)
Was commentator Nellie Gray correct? Some describe
abortion as an evil of society-as murder against the
most innocent of all, the unborn. Others describe it as merely another
operation with no more moral implications than most others. Whatever the law,
this emotive issue creates a divide that is unlikely to change. Should the
mother have supreme jurisdiction over what happens to her body? What about when
her body contains a separate life? Whose interests should be followed-the mothers
or the childs?
Abortion is currently legal but lies within certain
restrictions. The current legal status appeases both sides of the debate: the
‘Pro Life’ supporters who are against abortion and the ‘Right to choose’
supporters who are in favour of abortion.
The view on abortion has considerably changed over
many years’ as has its legality. The first notable legislation on the issue was
the Offences Against The Person Act 1861. Section 58
of the Act, provides that it is an offence for a pregnant woman to give herself
poison or to unlawfully use an instrument or other means with intent to procure
a miscarriage. Section 59 of the Act also provides that it is an offence to
knowingly aid an abortion. The view at the time and even over a century later
was very strongly pro-life. In 1968 in R V Price, a doctor was convicted for
attempting to give an abortion to a patient who despite his belief was not
actually pregnant.
This legislation still left gaps in the control
over life. Whilst it controlled the rights of the foetus, rights of a born baby
were controlled by the criminal law. However, there was no law protecting the
baby whilst it was being born. This was solved by the Infant Life
(Preservation) Act 1929. Section 1 provides-
(1)…any person who, with intent to destroy the life of a child capable
of being born alive, by any wilful act causes a child to die before it has an
existence independent of its mother, shall be guilty of felony, to wit, of
child destruction…
(2) For the purposes of this Act, evidence that a woman had at the
material time been pregnant for a period of 28 weeks or more shall be prima
facie proof that she was at the time pregnant of a child capable of being born
alive
However, it should be noticed that the morality of
the issue of abortion has considerably changed over time. In 1938 in R V Bourne
a doctor was acquitted of performing an abortion on a 14-year-old girl who had
been raped. The court decided that the term “for the purpose of
preserving the life of the mother” could be understood as
including the mental health of the mother that was at threat. The burden of
proof was then on the prosecution to prove that the abortion had not been
carried out in good faith. Though the morality of this judgment may have been
justified, the reasoning was flawed. I do not believe that Parliament at the
time of the 1929 Act intended the provision to include the mental health of the
mother. In this case, the boundaries of Judicial Interpretation were stretched
a little too far to cater for the judges’ personal view. The court usurped
Parliament because legislation had fallen behind widespread opinions on the
issue.
The major milestone for the supporters of the
‘Right to choose’ camp has been the 1967 Abortion Act. This legislation made
abortion legal under certain criteria. The Act was amended by the Human
Fertilisation and Embryology Act 1990, s 1(1) which provided that a registered
G.P could terminate a pregnancy if two doctors agreed that one of the following
applied-
-the pregnancy had not exceeded 24 weeks (note that
this was reduced from the 28 weeks in the 1929 Act) and continuing it would
involve greater risk to the mother than ending it
-continuing the pregnancy would give grave
permanent injury, whether physical or mental to the mother.
-continuing the pregnancy would involve greater
risk to the mothers life than ending it would and
-the child if born would likely suffer from great
physical or mental abnormalities giving it a negligible quality of life.
This legislation throws up many moral and legal
questions. Firstly the qualification of 24 weeks not having been met cannot be
certain. Doctors can only estimate the time of conception. If they are wrong by
a few days, one person may qualify whilst another does not despite being of the
same gestation period.
The Mothers mental future mental health in the
event of a child being born has to be questioned. Whilst pregnant a woman may
wish to abort the child, as it is unwanted. Maybe it was as a result of failed
contraception or even rape. However, once the child is born a mother has
established a moral bond with the child. Her mentality may then change. Doctors
are trained in medicine but not as fortune-tellers and therefore should not be
able to play God.
If the mother is likely to suffer mentally by
raising a child, the option of adoption is always open. The mother would then
not have to suffer from raising a child, but only from carrying it. To save a
life as the foetus should normally be perceived to be, is worth the indignity
of having to carry a child for nine months. In the event of serious mental
scarring of childbirth, such as by carrying a baby conceived by rape, the
mothers’ interests are rightly considered priority. In those circumstances
abortion is rightly permitted.
Any permanent physical injury to the mother should
be qualified as extremely serious for abortion to be acceptable. For example if
aborting a foetus will only save the mother from a minor injury, the
termination should not be allowed.
It is only right for a child to be aborted on
grounds of its promise of quality of life being low, when it is obvious that
its quality will be extremely low. This should be in the child’s best
interests. The current legislation would allow for a child being born with a
broken limb to be aborted. If, however a born child had a broken leg or arm, it
would not be considered appropriate for the child to be killed because of it.
The law manages to disrespect the unborn easily because we cannot see the
unborn. This is only a reason for abortion when the quality of life would be so
low that euthanasia is deemed acceptable for a born child with the same
disability. Again, this allows doctors
to play God in deciding what quality of life is worth living. This is
subjective, not objective and should not be decided so freely by doctors.
On a whole, the 1967 Abortion Act is very vague and
allows for very loose interpretation. It is so vague that abortion can be
granted to almost anybody who asks for it. The sanctity of life is not closely
enough adhered to. The foetus is given no rights-
“The foetus cannot, in English Law, in my view, have any rights of its
own, at least until it is born and has a separate existence from its mother”
(Sir George Baker, Paton V Trustees of BPAS 1978)
A key issue surrounding Abortion is when it is that
the foetus becomes a person. To kill a person is murder whilst to kill a foetus
is not. Does the foetus become a person at birth or at some point before?
“Whether or not abortion should be legal turns on the answer to the
question of whether and at what point a foetus is a person. This is a question
that cannot be answered logically or empirically” (Paul Campos).
It is argued that the termination of the life of an
unborn child is not wrong because that child is not a ‘person’. Being a
‘person’ involves feeling the emotions of a child. It is argued that a foetus
cannot experience emotions such as happiness, sadness, excitement and pain. The
foetus, though alive has little to no thoughts. This argument is however
flawed. A child who was born an hour ago has no more feelings than a child
about to be born in an hour. What gives the one a right to be classed as a
person whilst the other is not? If a child can be aborted before birth, the
child after birth should have no more rights. By that rationale a mother should
be able to choose to terminate the life of a newborn baby if the mothers mental health is at risk. That is of course illegal,
and rightly so. The law gives a ‘cut off point’ at which termination of life is
no longer acceptable. There should be no cut of point at where a life can be
terminated.
Therefore it must be determined at which point
‘life’ exists. ‘Personhood’ is merely a buzz-word created by boffins to
rationalise the practise of abortion as morally acceptable. When does ‘life’
first start though? Is it when a child is born? To establish when life first
exists, we can look at death. It stands to reason that life will be the
opposite of death. There are many opinions on when death occurs, but most
widely accepted is at the point of brain stem death (Airdale
NHS Trust V Bland). Therefore life exists at the point of brain activity
(brainwaves) first exists. In an unborn child, this rests at 47 days after
conception. Therefore abortion should be legal under any circumstances within
the first 47 days and in limited circumstances after that time period. As the
information of the gestation period is not an exact science, this would create
some problems. However as most women could not have abortions within this time
for practical reasons, this presents only a small problem.
It has been suggested that abortion even before
this point is morally wrong because it deprives the world of what would have
been a life. Some believe that contraceptive methods such as the ‘morning after
pill’ and the Intra-uterine device (coil) are acts of abortion at an extremely
early stage of a pregnancy. This interpretation is fundamentally flawed. It
presupposes the desire to create life as morally correct. Whilst the bible says
‘Go forth and multiply’, the law does not and rightly so. There is as much
justification in saying using the pill is abortion as there is in saying not
having sex is morally wrong. We are under no obligation, moral or legal to go
forth and multiply. Until the unborn child develops brain waves, it is not
alive. There is no life to speak of. At that point the foetus deserves no more
respect than millions of dormant gametes waiting to one day have a chance of
fertilisation.
Now it is established when Abortion is normally justifiable,
individual groups have to be addressed. Should the law on abortion be different
for children or incompetents? What are the rights of the father as well as the
mother and unborn child? In the medical zeitgeist should sperm donor fathers or
women carrying other peoples babies have a right? What
should happen in situations arising out of medical negligence or malpractice?
Gillick
competent children (Gillick V West Norfolk and Wisbech AHA) can rightfully consent to an abortion.
However, disputes between Gillick competent children
and their parents have to be settled by court under current law. If the correct
criteria can be met for an abortion, it should be granted providing the Gillick competent consents. This is despite the wishes of
parents. Similarly, if a Gillick competent refuses an
abortion, their wishes should be followed despite the wishes of the parents. It
is correct that non Gillick competent children should
have their parents as proxy’s in the decision whether to terminate the
pregnancy. The same criteria should still be followed though to qualify for an
abortion.
In the case of incompetent patients, the court
decides what the best interests of the patient are. If this can coincide with
the best interests of the child, it is a correct approach.
The plight of fathers has been much overlooked in
the debate on abortion. Whilst a father cannot claim abortion is necessary to
protect his own physical health or life, claims on the child’s quality of life
and his own mental health arguably should be viable. Under current legislation
the father has no rights whatsoever to insist on an abortion. Claims made by
fathers have failed in numerous cases such as Paton V
BPAS (subsequently Paton V
Under current legislation, sperm donors do not have
a right to insist on an abortion. They are contractually obliged to allow their
sperm to help create effectively what would be their child. Because they have
no legal claim over the child when born they rightfully have no legal claim
over the unborn child.
Woman carrying someone else’s child arguably should
have more rights. They develop a bond with the child through carrying it for
nine months. This huge sacrifice of their body should give them enough
justification to terminate the child’s life under strict criteria. They should
have the same rights as a biological mother except termination for the mental
health of a partner and the health of the child. Decisions surrounding the
health of the child if born should be taken by the biological mother.
If a foetus suffers an injury due to negligence
before it is born, it does have a right of action after it is born. This has
been law since the enacting of the Congenital Disabilities (Civil Liability)
Act 1976. Notably though, mothers cannot be liable except for negligence during
driving. There should be no difference whether the child is born or not when
the injury is sustained. If the child is a life, it should have the same
rights. Therefore injuries sustained by a negligent mother or anybody else
should result in liability just as if the child was injured after birth.
The law on abortion undoubtedly needs to be
updated. It needs to take account of the interests of fathers and those who
carry children for others. It also needs to be much stricter on who is allowed
to have an abortion. Abortion has become an easy option for many as the Health
service faces abortion on demand. The rights of the foetus should be more
closely followed with the event of 47 days deciding on whether abortion should
be granted without question or very closely scrutinised.
To prevent the inevitable increase in the number of
dangerous back street pregnancies that would come along with the tightening of
the abortion ropes, the root cause of the problem would have to be addressed
further. Currently, not enough is done to promote safe sex. The need for
increased awareness of the risks of unprotected sex is vital.