Introduction
Abortion as a procedure has, existed for many centuries and it has become one of the most controversial issues in the society.[1] Yet, despite the age of the procedure, it remains highly contentious. National Abortions Statistics shows that there were 189,574 abortions in England and Wales in 2010, which is a small rise of 0.3 % from 2009. It also states, one in three women will have an abortion over her lifetime.[2] In brief, the dissertation tends to focus on two extreme positions. One of these positions views abortion as contrary to the sanctity of life and morally impermissible, while the other views abortion as a method of respecting a woman’s autonomy and thus not only morally permissible but a woman’s ‘right’. These views can be categorised as pro-life versus pro-choice. This dissertation will evaluate the arguments for and against the legalisation of abortion on demand in the first 24 weeks of pregnancy in light of the recent finding that foetuses do not feel pain prior to this time. The dissertation then goes on to consider whether law reform is necessary and the most appropriate form that this could take.
Background to the argument :
Medical law is a complex area, deriving its concepts from an array of other legal disciplines, such as criminal law, tort law and human rights law. This complexity is compounded by the fact that it is impossible to consider controversial medical law issues without also considering ethics.[3] This is because ethical dilemmas are often at the forefront of medical law, such as those relating to end of life decision making, the refusal of treatment and, of course, abortion. These ethical dilemmas are viewed in different ways depending upon the ethical standpoint of the observer. It is therefore necessary to consider the way in which ethics influences the law and the best course of action for the law to steer in relation to issues which may give rise to polarised arguments.
Ethical discourse seeks to consider the justification for actions.[4] Where two or more courses of conduct may be seen as justifiable in a particular set of circumstances, an ethical dilemma arises. The courses of action, which are in themselves objectively justifiable, may lead to opposite outcomes. It is therefore difficult in these circumstances to know what the ‘right’ thing to do in that set of circumstances is.[5] At this point, morality may step in to influence the choice. Morality may be individual or communal, and is made up of a core set of values by which people try to abide.[6] This is different from ethics, which may be informed by morality but which operate within an established framework of values.[7] One such framework is that of principlism, as set out by Beauchamp and Childress.[8] These authors argue that ethically appropriate conduct is determined by reference to four key principles, all of which must be taken into consideration when reflecting on one’s behaviour towards other people. These are respect for autonomy, beneficence, non-maleficence, and justice.[9] Furthermore, they argue that these four principles represent a ‘common’ morality.
In relation to abortion, two main ethical principles are utilised by those championing either side of the debate. These are the sanctity of life which has being mostly used pro-life camp and autonomy has being mostly used by pro-choice camp. The sanctity of life principle derives mainly from religious perspectives.[11] The principle holds that a human life is a fundamental basic good[12] and that therefore a person should not be intentionally killed, regardless of any disability or incapacity.[13] Although this principle derives mainly from religious viewpoints, there is also a secular version of this argument which uses as a starting point the premise that a newly born baby has the same moral status as an adult human, and that working backwards there is no point at which we can draw a line and state that there is a moral distinction between the newborn and the foetus, as there is no moral distinction between a newborn and a baby about to be born, or a baby about to be born and a 40 week foetus, or a 38 week foetus and so on.[14] In contrast, the main principle behind the pro-choice argument on abortion is autonomy. This may be defined as ‘self-rule’ and is “the capacity to think, decide, and act on the basis of such thought and decision freely and independently and without… let or hindrance.”[15] The principle of respect for autonomy holds that a woman should have the right to choose what to do with her body, i.e. whether to go through a pregnancy or to have an abortion, and that this choice should be respected regardless of an individual’s personal views on the matter. However, it is clear that these principles give rise to polarised positions, and in reality the arguments relating to abortion are often much more subtle, such as at what stage a foetus should be considered as having some form of ‘right’ that trumps that of the mother, or whether the sanctity of life principle can be overridden in cases of rape or extreme disability. In the next part of this dissertation considers the ethical debate in relation to abortion in more detail in order that the current law on abortion can be evaluated with reference to ethical standpoints.
No foetal pain before 24 weeks:
Status of the foetus:
For many commentators concerned with the debate on abortion, whether it is ethically permissible to terminate a pregnancy, and up to what stage in the pregnancy this may occur if at all, depends upon the status of the foetus.[16] If the status of the foetus is seen as one which affords it no interests, or no ‘right to life’ then for most the debate is settled.[17] However, if one considers that the foetus is a ‘person’ with all associated human rights, such as a right to life, then the position becomes more complex and the matter is one of balance between the rights of the potential mother and the rights of the potential baby.
The main difficulty in relation to the status of the foetus is that there is no universally accepted point at which the foetus stops being ‘matter’ and starts being a ‘person’. In the opinion of Finnis,[18] the foetus becomes a ‘person’ at the moment of conception. As such, it is submitted by Finnis and those who share his view that abortion is morally wrong at any point. Hursthouse also opines killing a foetus from the minute of conception is as wrong as killing a human being.[19] Even if this is rejected, it may be argued that the point of conception does not equate with personhood, but that the point of conception is the time at which the matter has the potential to be a person, and therefore should be treated in the same way as if it was in fact a person. For example, Marquis argues that what makes the killing of an adult human wrong is that it deprives that person of the future that they would otherwise have. He argues that on this basis abortion must also be wrong, as to abort the foetus is to deprive that potential human being of the value of its life to come.[20]
An advantage of arguments against abortion based on the foetus acquiring rights at conception is that it provides a point of ‘safe bet’ as because we do not know for certain when ‘personhood’ begins, the safest assumption is that it begins at the moment of conception.[21] However, the result of an acceptance of this position would be that many forms of contraception, which are considered perfectly moral by many, would have to be rejected as unethical, such as the ‘morning after’ pill and even the regular contraceptive pill.[22] Furthermore, embryo research and IVF practices would also have to be viewed as immoral. These consequences lead many to argue that the personhood at conception argument must be rejected, as it does not feel instinctively or intuitively ‘right’.[23]
Others argue that the moment of conception is not a suitable one for determining ‘personhood’ as it is simply too uncertain. This is because, for example, it is not until 14 days that it is clear whether or not the embryo will divide to form two foetuses. Some therefore contend that the appearance of the primitive streak at 14 days is the more appropriate time for the beginning of ‘personhood’.[24] Such an argument would suggest that any abortion after 14 days would be morally wrong, but that contraception and the ‘morning after’ pill would be morally permissible. However, one major difficulty with this position is that the exact time of the primitive streak is unclear.
A more traditional argument about the start of personhood is that this is the moment that the foetus ‘quickened’.[25] This is the time when the pregnant woman first feels the movement of the foetus and was seen by some as the moment that life begins. However, the problem with this approach is that the time at which movement is first sensed is highly variable.
An alternative suggestion for the point at which the foetus becomes a person for the purpose of the argument on abortion based on morality is the time at which it becomes viable, that is the time at which, were it to be born, the foetus would be capable of surviving as an infant.[26]In the UK this may be at 26 weeks, although premature babies of only 24 and even 22 weeks have survived.[27] Yet, the notion of viability as a criterion for personhood has been criticised because it is again highly variable, depending on the foetus, the quality of medical care, and perhaps even ethnic origin.[28] Thus, using the point of viability as the time at which abortion would move from being morally permissible to morally impermissible is flawed, as it is simply too uncertain to state at what point during the pregnancy this occurs.
Some commentators have argued that personhood, and thus the moral impermissibility of abortion, occurs at the time when the foetus gains sentience.[29] This is the time at which the foetus is capable of sensation, and it is thought that this occurs at around 20-24 weeks. The relevance of this time is that it is said that only a being which is conscious and capable of experiencing pleasure and pain can be said to have interests, and without interests there is no right to have those interests protected.[30] However, there is uncertainty as to the point at which a foetus becomes sentient and it may be that as medical technology progresses the point of sentience becomes earlier than currently believed. Furthermore, there are issues of how to balance this ethical viewpoint with killing any complex organism, ie a bug.[31]
A particularly controversial viewpoint on personhood is that expressed and developed by Tooley. Tooley argues that only organisms which possess the “concept of self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity” are actually possessed of personhood.[32] It is only at this point, in Tooley’s opinion, that the foetus or infant becomes a person and thus only then does it gain a right to life.[33] Tooley summarises his argument as being that right to life presupposes that one is capable of desiring to continue existing as a subject of experiences and mental states. This in turn presupposes both that one has the concept of such a continuing entity and that one believes that one is oneself such an entity. So an entity that lacks a consciousness of itself as a continuing subject of mental states does not have a right to life.”[34]
Thus, this view would suggest that not until much later, and almost certainly some time after birth, is the killing of the foetus morally impermissible. The logical conclusion of this view is that infanticide is also permissible. This is because personhood, on this view, may be defined in terms of the possession of characteristics such as consciousness, the ability to reason, motivated activity, communication and the concept of self. As Kuhse and Singer opine: “We must recall, however, that when we kill a new-born infant there is no person whose life has begun. When I think of myself as the person I now am, I realise that I did not come into existence until sometime after my birth.”[35]
The argument put forward by Tooley and his supporters is therefore that although the foetus and new born baby may be described as human, the term ‘person’ cannot be applied until later, and it is the misuse of the term ‘person’ by others which has led to others to argue for a limit on abortion much earlier, say at 24 weeks.[36] The strongest form of the personhood at ‘concept of self’ argument holds that it is never morally impermissible to terminate a pregnancy (or to kill a newborn infant). This is controversial and for many the shocking conclusion that infanticide must be morally permissible leads them to instantly reject the argument.[37] However, a deeper consideration of this ethical viewpoint leads to the conclusion that infanticide would only in fact be morally permissible in the rare case that killing an infant non-person was the only alternative to killing a fully-fledged person.[38] The argument does not hold that the killing of infants is permissible for no reason whatsoever. This is because the theory does not provide that just because the infant is a non-person it has no moral status whatsoever, but instead that these non-persons must still be treated with care and respect. It is simply that the non-person cannot assert rights greater than that of persons.
The above ethical viewpoints all advocate different starting points for ‘life’ or ‘personhood’ from which to argue that the sanctity of life principle requires that abortions should not take place beyond this time. As there is no settled and unified view on this matter, it is difficult to utilise the start of ‘life’ or ‘personhood’ as the determining factor for the moral permissibility, and thus where the law should draw the line, of abortion using this argument alone. None of the theories are perfect, in that each of them leads to either uncertainty or undesirable consequences, such as the lack of permissibility of embryo research or contraception or the permissibility of infanticide.
A woman’s right to autonomy:
Even if one accepts the view that the foetus is a ‘person’ and therefore it is morally wrong to terminate its life, as this denies it its ‘right to life’, this is not the end to the argument. This is because the ‘rights’ of the foetus must still be balanced against those of the woman. Some writers consider that regardless of the status of the foetus, the rights of the actual person (the woman), should take priority. For example, Warren states that a foetus is a potential person which does not yet possess full moral rights but that even if such a potential person is considered as having a right to life, this right should not be considered to outweigh or overrule the existing right of the woman who is an actual, rather than a potential person. The woman should, according to Warren, have the right to obtain an abortion as a right which outweighs any rights which belong to a potential person wherever those two sets of rights are in conflict.
Some authors are of the view that a woman should always have the right to choose whether or not to go through with a pregnancy, regardless of the circumstances. Little suggests that being pregnant is being ‘inhabited’ or ‘occupied’.[39] This suggests that the woman is sacrificing her own boundaries of self in order to carry the foetus. As such, the woman should not, it is contended, be forced to submit to pregnancy. Such a view underlies the ‘self-defence’ argument to justify abortion. McDonagh states that pregnancy “constitutes serious harm without the woman’s consent.” [40] She goes on to argue that this justifies the use of ‘deadly force’ in the form of abortion. McDonagh accepts that this argument may be rejected on the basis that the woman has usually consented to the sexual intercourse which results in the pregnancy, but contends that just because the woman has consented to a risk, does not mean that she has consented to the injury. Thus, the woman’s right to an abortion in the first 24 weeks is not dependent upon proving that the foetus is not a ‘person’ with a ‘right to life’.[41]
One of the most influential and debated viewpoints on the woman’s right to choose has been put forward by Judith Thomson.[42] Her argument is known as the ‘violinist’ argument. She asks the reader to consider a hypothetical situation in which the reader wakes up to find that they have been ‘plugged in’ to a famous violinist. The violinist has been found to have a kidney problem and the only person who can keep him alive is the reader. The reader has been kidnapped against their will and been told that they will, in order to save the life of the violinist, have to remain ‘plugged in’ for nine months, after which time the violinist will have recovered. Thomson’s argument rests on the assumption that the reader will instinctively say that they are entitled to unplug themselves. Some people might choose to remain plugged in, in order to save the violinist, but according to Thomson they should not be forced to do so.
Thomson’s hypothetical situation involves kidnap. Although this may be considered to be analogous with rape, it can easily be distinguished from most pregnancies on the basis that the woman consented to the risk of pregnancy. Thomson realises that the violinist situation may give rise to this objection and asks the reader to consider a different hypothetical situation. In this, people-seeds’ drift through the air in a similar way to pollen, and if they get in through the windows they might take root in the carpets. By fixing mesh screens to the windows the woman attempts to ensure that no people-seeds can get in and take root. However, on rare occasions the mesh fails and a seed takes root. Thomson asks the reader: “Does the person-plant who now develops have a right to use your house?”[43] She would argue that it does not.
However, this situation can also be distinguished from that of pregnancy. In particular, ‘people seeds’ in the form of sperm do not just fly around. The woman must actively engage in sexual intercourse for the risk to present itself. Furthermore, pregnancy is a natural phenomenon, and there are no other places in which the foetus can exist, presumably unlike the people-seeds of Thomson’s analogy.
Against the argument that a woman should always have a right to choose whether or not to continue a pregnancy, and thus whether or not to have an abortion, Hursthouse contends that motherhood is ‘intrinsically worthwhile’[45] She argues that women should behave virtuously, and this means that the choice of an abortion should only be made for ‘virtuous’ reasons, such as a risk to life.
Finally, it should be noted that Dworkin has attempted to bridge the gap between the pro-life and pro-choice arguments by focusing on common ground between the two positions. He notes that most pro-life advocates agree that abortion should be permissible in certain situations, such as when it is necessary to save the mother’s life, and similarly that pro-choice advocates often reject the view that abortion is morally unproblematic and some suggest that abortion should not be carried out very late in pregnancy.[47] Dworkin concentrates on the investment in human life. He contends that investment can be seen in terms of the natural investment of life itself and the human investment which represents the effort put into life by the person themselves and those around them. Elderly people will have seen a greater return on their investment, through the experience of life, than young people. He therefore sees the question about whether abortion as one of the justification of the frustration of natural investment in order to avoid frustration of human investment.[48] However, although this is an interesting addition to the argument, it far from settles the matter and does not really add anything other than saying that abortion may sometimes be morally justified. On demand in the first 24 weeks.
No foetal pain before 24 weeks:
The finding that there is no foetal pain suffered in the first 24 weeks of pregnancy may alter the views of some on the beginning of ‘life’ or ‘personhood’ and may influence which of the above theories is preferable. The finding that no foetal pain is felt before 24 weeks may lead to the conclusion that there is no moral need to ‘play it safe’ by making abortion impermissible at all or after 14 days. Instead, the point of sentience may be set at 24 weeks and be utilised as the cut-off point for morally permissible abortions. A view that abortion should be permissible before the foetus can experience pain, but not after it, leads to a compromise position between those who consider that the foetus becomes a ‘person’ with the right to life at some point in the pregnancy, such as at the point of the primitive streak, quickening or sentience, and those who consider that the foetus is not a person until sometime after birth. Although a compromise position might be perceived as undesirable when dealing with a matter of such importance, the fact that this position relies on the ability or otherwise to experience pain does give it a moral underpinning.
Furthermore, in relation to the balance between the rights of the foetus and the rights of the pregnant woman, the criterion of ability to feel pain may mark an appropriate point at which to alter the balance between the rights of the two beings. Prior to the foetus’ ability to feel pain, the mother may choose whether or not to continue the pregnancy, as any continuation of that pregnancy is likely to cause at least some level of pain or discomfort to her. Beyond this time, it is at least arguable that foetus should be protected against pain unless the likely pain to the mother in continuing the pregnancy will be significantly greater. This could be the case where there is a danger to the health of the woman in continuing the pregnancy or where the woman would suffer significant emotional trauma if the pregnancy continued, for example because she was raped. Some woman do not accept that they are pregnant till late in pregnancy as they realize that their bleeding is due menopausal signs and because their periods do not stop.[49] Therefore, termination up to 24 weeks will remain necessary.
Current law :
The law on abortion is currently regulated in the sphere of criminal law, as abortion is a criminal offence with defences to it provided by the Abortion Act 1967.[50] The Offences Against the Person Act 1861, section 58[51] makes it an offence for a woman to try to bring on her own miscarriage if she intends to do so, and also makes it unlawful for another person to try to procure the miscarriage of a pregnant woman. The Infant Life Preservation Act 1921, section 1,[52] makes it an offence to wilfully destroy the life of a child capable of being born alive, and assumes that any foetus over 28 weeks is so capable.
Under the common law there is a defence to abortion of necessity. In R v Bourne a 14 year old girl had been violently raped and the doctor who performed the abortion argued that there was evidence that she would become a ‘mental wreck’ if the pregnancy went ahead. The court held that if the jury was persuaded that the doctor performed the operation in good faith in order to save the girl’s life then they were entitled to acquit him. The doctor was found not guilty. This decision is indicative of the views of the courts prior to the Abortion Act, but it is not of particular relevance today as the common law defence is narrower than that under the Act.
The Abortion Act 1967 sets out the circumstances in which an abortion will be legal. The Act does not provide a right to abortion, and thus it is not for a woman to demand an abortion, even up to a certain point in the pregnancy. The Act at no time gives the woman the right to ‘choose’ whether or not to have an abortion, but instead provides that where two doctors believe that she should have an abortion, there is a defence to her then doing so. Section 1 of the Abortion Act provides a defence to an offence relating to abortion so long as two medical practitioners are of the opinion that one of the grounds for abortion exist. These grounds are ;
- that the pregnancy is less than 24 weeks and that to continue the pregnancy would involve greater risk to the mental or physical health of the pregnant woman or any children of her family greater than the risk if the pregnancy is terminated,[54]
(b) that regardless of the duration of the pregnancy the termination is necessary to “prevent grave permanent injury” to the woman in the form of either physical or mental injury,[55]
(c) that the continuation of the pregnancy would involve a greater risk to the life of the woman than the termination of the pregnancy,[56]
(d) that the child has a substantial risk of being born with a serious mental or physical disability.[57]
Thus, prior to 24 weeks the woman may seek an abortion, though she does not have the right to demand one, if two doctors feel that the continuance of the pregnancy would risk injury to the physical or mental health of the woman, or to her other children. After 24 weeks an abortion will only be legal if the continuation of the pregnancy would cause grave permanent injury to the woman, either physical or mental, or the baby is at substantial risk of being born with a serious handicap. In all cases it is the opinions of the doctors which are relevant, rather than the opinions of the woman.
In relation to the status of the foetus, Paton v BPAS states the foetus is not a person until it is born, and in fact the foetus does not, prior to this time, have any independent rights of its own at all.[58] However, this is not to say that the foetus is a ‘nothing’ or simply part of the woman, but instead is considered as an organism sui generis, not a person on its own but not a part of the mother.
There has been some attempt to invoke human rights law in relation to foetuses. In Vo v France[60]a doctor mistakenly carried out a procedure on a pregnant woman which resulted in the termination of the woman’s pregnancy. It was argued that the fact that French law did not provide a criminal remedy against this behaviour infringed the right to life of the foetus. The ECHR held that it did not. It was confirmed that a foetus is not a legal person and was not directly protected by the article 2 right to life. The ECHR was of the view that the status of the foetus is a matter for each Member State to decide.
More recently, the human rights involved in abortion have been considered in the case of A v Ireland.[61]The case concerned Irish law, which only permits an abortion where it is necessary to avoid a real and substantial risk to the life of the mother. There is thus no ground for abortion based on the health and wellbeing of the mother. Three applicants challenged the law on the basis of their article 8 rights to a private and family life. In relation to all three applicants the ECHR found that the article 8 right was in fact engaged. However, in the cases of two of the applicants the interference with their rights was justified on the basis of the moral issues involved. In relation to the final applicant, she had suffered from cancer and been told that her treatment would damage any foetus. When she later found out she was pregnant she had travelled to England on the basis that she believed she would not be entitled to an abortion in Ireland. It was held by the Court that her right had been unjustifiably interfered with as the legislation was not clear enough and there was no easy way for the woman to tell whether or not her case fell within the exception.
Thus, the foetus cannot be said to benefit from human rights law. However, the mother will not usually be able to demand an abortion in the first 24 weeks on human rights grounds, and it is only where the state does not provide clear guidance on what will fall within or without the law that the woman will benefit from such an argument.
No foetal pain before 24 weeks – Arguments for Law reform :
The law as it stands currently utilises the concept of viability to provide the cut off point at which a woman can legally have an abortion on the ground of risk to physical or mental health of the woman or to children of her family. Thus, the gestational limit was reduced from the original 28 weeks to 24 weeks.[62] In reconsidering the evidence in this area, a House of Commons Report recently suggested that no evidence of significant survival rates prior to 24 weeks was available, and that therefore the upper limit should not be decreased.[63] Furthermore, the Report found that no pain is suffered by foetuses prior to 24 weeks, and that therefore there was no real basis for reducing the upper limit on that ground.[64]
However, the fact that no significant reforms to abortion law were recommended by the report does not mean that reform should not be introduced. Two arguments which are completely outside the area of foetal pain may immediately be put forward to suggest that the law ought to be reformed. Firstly, the fact that two doctors must agree appears to overly limit accessibility to abortion, and it may make the provision of abortion dependent upon the region in which the woman lives. Indeed, because of the possible delaying effect of this requirement, the House of Commons Report did recommended that the law should be changed to allow an abortion to proceed on the basis of one doctor’s signature, rather than two.[65]
Secondly, the fact that the law currently does not permit abortion on demand does not in fact mean that the woman is not able to effectively choose to terminate her pregnancy, at least in the first 24 weeks of pregnancy. The law as written seems to suggest a very paternalistic approach in this area of law, with the decision on whether or not to terminate the pregnancy left entirely to the doctors. However, the reality is that a woman who wishes to terminate her pregnancy is likely to be able to satisfy the requirement under section 1(1) of the Abortion Act in order to achieve one. This has led some commentators to suggest that up to 24 weeks in to the pregnancy there is in fact in the UK the ability to seek abortions ‘on demand’.[66] Herring suggests that the better view is that: “While the law enables there to be abortion on demand, it does not ensure there is.” [67] Surely, the law should be changed to reflect the reality of the situation in order to provide clarity and certainty. The argument is therefore that since the law currently does not prevent abortions on demand up to 24 weeks, it should be changed to provide a right to abortion on demand up to 24 weeks.
This argument is bolstered by the fact that it has been found that the foetus does not suffer pain before the 24 week limit. As discussed above, this has implications for the way in which the moral arguments relating to abortion are perceived. The lack of pain experienced by the foetus would seem to tip the balance in favour of respecting a woman’s right to autonomy, rather than, some would argue falsely, endow the foetus with personhood and associated rights. Indeed, the reform of the law to give a clear right of women to choose to have an abortion up to 24 weeks may be justified on the basis of the principlism approach to ethics referred to above. Clearly, autonomy as the first principle would be satisfied by such a change, as it would give effect to the right to autonomy of the adult woman. The principle of beneficence[68] would also arguably be satisfied as it would allow the woman to choose the best course of action for her health and wellbeing, and that of the people around her. This would of course be balanced by the principle of non-malificence [69] which would require that no abortion would take place simply on the basis of demand after the 24 week limit, as this could potentially cause harm to the foetus, in the form of pain, and this harm could not be justified on the basis of the wishes, rather than the firm needs, of the woman. The overall result of such a reform would be to uphold justice.
Conclusion :
All women would be treated equally, as the right to receive an abortion would exist up to 24 weeks regardless of whether the woman could find a doctor who shared her ethical viewpoint or views as to what constituted the right decision and the law would be more reflective of the reality of abortion practice. In light of the finding that no foetal pain is suffered prior to 24 weeks, the law should be reformed to give a woman the right to abortion on demand up to this point in the pregnancy.
