Abortion and Human Rights | An Analysis

What is Abortion?

The word ‘abortion’ comes from the Latin word ‘aboriri’ meaning ‘to fail to be born’. Abortion can be defined as the premature expulsion of a foetus from a womb (termination of pregnancy). In matters of ethics abortion usually refers to the intentional destruction of a foetus in the womb.

Why do women have abortions?

• Find out that the foetus is disabled or deformed.
• Mother is underage and would not be able to look after the baby.
• The foetus is carrying a hereditary (genetic) illness.
• Mother got pregnant by mistake and it is used as a form of contraception.
• The mother will die if she continues her pregnancy.
• The mother is underage (16) and faces physical harm if she goes full term (as not developed well enough).
• The mother has been raped and become pregnant.
• It is used to cover up an affair.
• In some cultures, where sons have a higher economic value women can sometimes decide to abort if the foetus/embryo is female.
• Women in the workplace and career minded.

The Legal Position of abortion in the UK

In the UK abortion became illegal in the nineteenth century when the penalty for having an abortion was life imprisonment. Women trying to escape the unwanted pregnancy were forced to use unreliable and dangerous methods, including poisonous drugs, knitting needles, blows to the abdomen etc.

If a woman had money, she was discreetly taken to a clinic for an illegal abortion. For those without money the only option was ‘back street’ clinics where untrained people performed the operation. Knitting needles were routinely used for this ‘operation’, but there was rarely pain relief. Poor hygiene and (sometimes) banned drugs were another feature of back street abortions. Many women haemorrhaged (very heavy bleeding-often life threatening) and some bled to death rather than go to hospital where their symptoms would be recognised.

Many people were appalled by the number of women suffering and dying as a result of illegal (‘back street’) abortions. Due to pressure from the public, an abortion Reform Bill was introduced. This became LAW in 1967 and took effect in 1968.

The Abortion Act of 1967 (Revised 1990) stated that:

Abortion is legal if two doctors independently agree that one or more of four reasons for it exist:

• The mother’s life is at risk if the pregnancy continues.
• The mother’s mental or physical well-being is at risk.
• Scans or tests show the foetus is badly or physically disabled, or has a deformity, meaning it is unlikely to live at birth.
• There is risk of harm to existing children.

The main time limit was lowered from 28 weeks, to 24 weeks in 1990 (Human Fertilisation and Embryology Act).

However, the law allows an abortion at any stage of the pregnancy if the doctors agree that continuing the pregnancy would involve risk to the life of the mother or if there is a substantial risk if the child were born that it would be seriously handicapped.

The biological father has no rights and cannot, in law, stop an abortion. (In 1987 an Oxford University Student lost his attempt in the courts to prevent his girlfriend aborting the child they had conceived).

Most abortions in Britain are performed under the part of the Abortion Act which allows abortion if the pregnancy involves a risk to the physical or mental health of the mother. Many doctors involved in abortion argue that if a woman is determined not to have a child, to refuse her an abortion poses a possible threat to her mental health.

It was the rape by British soldiers of a young girl in 1938, which justified Dr Aleck Bourne carrying out an illegal abortion in order to safeguard her mental health. At trial he was acquitted. The precedent established grounds for abortion as an exception and eventually became the basis on the 1967 Abortion Act.

How are abortions performed?

• Vacuum Aspiration: (Suction abortion) Under general anaesthetic neck of womb (cervix) is dilated (opened) by probes. Suction then used to remove contents of uterus. Larger pieces of foetal tissue (usually the head) are crushed and pulled out with forceps.
• Dilation and Curettage (D & C): Scraping instrument (curette) is used and contents of the womb are scraped out.
• Dilation and Evacuation (D & E): Instead of a curette, small forceps are used to crush the contents and pull it out in bits.
• Prostaglandin’s (induced premature labour): This type of abortion is used in very late abortions and is rare in the UK. Hormones called prostaglandins are injected to bring on labour, which may last for 8 to 22 hours. A poison may be added to the womb to kill the foetus before delivery.
• RU486 pill will induce an abortion if taken in the first ten weeks of pregnancy.

Why is abortion so controversial?

Abortion is now commonplace and in many countries tens of millions of abortions take place every year. Although abortion is legal, its morality is still disputed. Religious organisations, such as the RC Church campaign against the availability whilst many women’s right groups campaign for greater access.

The key ethical dimension in the abortion debate is whether there should be an absolutist prohibition of abortion on the basis of divine law, natural law or human rights or whether there are situations in which it should be made available.

There are two central issues in relation to abortion:

1. Whether the foetus is a person or potential person
2. Whether the foetus has rights, and, if so, how these are to balanced against the rights of the mother.

1. When do humans become persons and become part of the moral community?

The status of human life between conception and birth is central to the abortion debate. Whilst some form of life is clearly present at conception, whether that form of life should get the full protection of the law as a ‘person’ is disputed. Not all-human tissue is a person as not all living cells are persons. Living cells such as cancer cells for example are not persons. If things like bacteria or plants are considered for example, very few people would argue that they should be protected simply because they are alive.

In terms of abortion, if the foetus/embryo is to be classified as a ‘person’, then abortion may be considered as the equivalent to a form of murder.

Opponents of abortion argue that to kill a foetus is to murder a human person. Pope Pius IX in 1869 declared that a foetus is a human person from conception and therefore abortion is murder. This claim is supported by the fact that all necessary genetic material is present at conception and the foetus continues development from conception until born as a human being.

Critics of this position argue that a fertilised egg is not a person. In ‘A defence of abortion’ (1971) Judith Jarvis Thompson accepts that there’s a continuous development but suggests that there is a point at which it is not a human being.

Let’s consider when the foetus could be classed as ‘human’:

Conception: In effect this is the point in which life begins and this is the argument given by opponents of abortion who say that this is the point at which a pre-embryo should be considered as a person. Others disagree with this, as the chromosomes do not develop until the third day and half of all fertilised eggs do not attach themselves to the wall of the womb, therefore cannot become babies.

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Physical sign: Some say that the foetus should be considered human when there is a physical sign, but what? From the 22nd day the heart beats and by day 42 the foetus is recognisably a human baby. Some argue that the foetus is human when the brain has developed activity, implying that the brain has some form of consciousness, which is crucial for making human beings what they are. Others argue that when the foetus has developed organs it should be considered human, but what organs and at what stage of development?

Consciousness may be suggested as a definition of personhood as it cannot be applied to all living tissues, as it applies to sensory experiences and the ability to feel pleasure and pain etc. The only problem with this is that consciousness would include many animals and most people would argue that an animal is not a person in the same sense as humans are. The presence of rationality and our ability to develop complex language are distinctive features of ‘personhood’. Perhaps self-consciousness or self-awareness defines personhood? This includes a sense of our past and our future.

However, very young babies are not self-aware in this sense, and most would argue that killing babies is killing human persons.

Viability: some say that a foetus should be considered a person when ‘viable’ (can survive independently of mother). Currently a foetus is seen as ‘viable’ at 24/25 weeks.

There are two objections to this:

1. Many people have tried to ‘draw a line’ at a particular point in which a foetus is to considered viable and say that before this point a foetus is a bundle of tissue. The problem with this is that there is no easy way of drawing that line. The age at which the foetus can survive outside the womb is constantly reducing as medical technology progresses, therefore what is viable now may not be in five years. It is now possible to keep a 21-week foetus alive in an incubator and with intensive care, yet abortion is allowed at up to 24 weeks. One could say that until the main organs are formed the foetus is not a person, but which organs are essential and at what stage of the development of the organs?
2. Many people are dependent upon medical technology to stay alive, such as dialysis. We do not consider these people not to be ‘viable’; we consider them to be persons, despite their medical conditions. Shouldn’t the same be applied to the foetus?

Ensoulment: ‘Ensoulment’ means having a soul attached to something. This is a very different suggestion as to when the foetus/embryo becomes human and is based mainly on religious ideas. It is argued that the most important aspect of being human is having a soul; therefore a foetus/embryo becomes human at the point when the soul is attached. Augustine maintained that a soul was implanted at 46 days, although he condemned abortion at any stage. Aquinas maintained that the souls of girls were implanted at 90 days and boys at 40 days. In the 17th Century however, the RC Church stated that ensoulment took place at conception, therefore the fertilised egg is a human person.

Birth: Before the foetus is born it is part of the mother’s body and after this it has certain independence and does not have to rely on its natural mother.

Mary Anne Warren in 1991 argued that birth marks the point of true moral status. (Singers, ‘A companion to Ethics’) she sates ‘birth, rather than some earlier point, marks the beginning of true moral status’. She argues that if a foetus is to be considered a person then so should sperm. Does this mean that we need to protect the rights of sperm? She states that birth provided a clear boundary.

Legislation in many countries allows abortion in exceptional circumstances up to birth but regards the deliberate killing of the baby after birth as murder.

Warren’s argument is vulnerable as a foetus of 34 weeks is quite clearly viable and if aborted is likely to live outside the womb and may actually have to be left to die. Is a foetus that is capable of surviving outside the womb entitled to moral rights?

The potential to become a person: It could be argued that the foetus is a potential person, as has the capability of becoming human and thus should be treated as one because of this. Many philosophers would argue against this. Potentiality does not necessarily imply that full legal status should be awarded on the basis of what it has the potential to be. A potential victory is not the same as an actual victory, having the potential to pass exams is not the same as actually passing them and a potential person is not equal to an actual person.

The definition of personhood remains unresolved, as it is an agreement over the point of which a potential human being becomes a full human being.

I could not find any recent statistics relating to the number of abortions at different stages in the UK and on what grounds. However, the following tables refer to abortions in England and Wales (1996) and are taken from Wilcockson’s ‘Issues of Life and Death’.

Wilcockson’s source for this was ‘Office for National Monitor AB 97/4 (July 1997)’

Table 1: Abortions in England and Wales, 1996

The above table indicates that most abortions in England and Wales take place within the first 9-12 weeks of pregnancy.

Table 2: Number of abortions in England and Wales for each of the statutory grounds, 1996.

The above table indicates that most abortions are carried out under the ‘physical or mental’ health part of the act.

The argument over when ‘life’ begins is ongoing and probably will be for a long time. Medical advances have made abortion easier and can also save the life of the unborn earlier. The debate is likely to continue and be hotly debate.

The question you should perhaps ask yourself is when do you think life begins? When do you think a foetus/embryo can be considered a ‘person’ and therefore have rights?

The table below may help you answer this question, although it must be stressed that this is only a short summary.

At conception:

Embryo starts growing from day one. This is when fertilization happens. The fertilized egg does not attach itself to the wall of the womb until day twelve (50% of fertilized eggs will not attach).

At 1 Month (0.5 cm):

Heart pumping since 18th day. The beginnings of eyes, spinal cord and nerves, lungs, stomach, intestines, liver and kidneys.

At 2 Months (2.5-3.5 cm):

Arms and legs become distinct and tiny fingers and toes appear. All internal organs of an adult, at various stages of development, are present. The first bone cells begin to be formed. Brain waves can be detected from about the sixth week.

At 3 Months (6-8 cm):

Development continues. The mother may feel the foetus kicking as it flexes its muscles. The heartbeat can be detected. The foetus now looks clearly like a human baby.

At 4 Months (12-18 cm):

The head has distinct human features and may have hair. The skin is pink, and the bones are closing to form joints.

At 5 Months(25-30 cm):

Developing rapidly and very active.

At 6 Months (28-34cm):

Eyes may now open. All systems are formed and are just growing in size.

At 7-9 Months (36-56cm):

Grows in size and fat is deposited to help survival at birth.

Does the foetus have rights, and, if so, how are these

balanced against the rights of the mother.

If the foetus/embryo is seen as human at a certain stage it then has rights. If the foetus or embryo is regarded as a person, how then does one balance its rights against the right of the mother?

A philosophy professor from Kansas, Don Marquis argued that killing in general is wrong because it deprives an individual of a future, which contains value. Most abortions, therefore, are immoral since they deprive the foetus of a future containing value. The foetus then has the right to life. Marquis argues that since it is wrong to kill rational and morally significant persons in principle it would be permissible to kill infants. Do we then allow abortion and the murder of infants because they are not rational?

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The feminist position began from the perspective of women’s rights. Mary Anne Warren put forward the case for granting women the ‘right’ to have an abortion arguing that the absence in the past of safe legal abortion led to undesirable consequences. (‘Back street’ abortion). Warren goes on to say that abortion must be permissible to guarantee a woman’s human rights. The World Health Organisation (WHO) backs this statement up with their statistics showing that 200 000 women are killed every year by unsafe abortions. To be forced to bear a child brings with it the hardships of possibly giving up work, therefore income, education, freedom etc. Prohibitation of abortion infringes these rights. Warren does say that killing is wrong, but to deny an abortion would deny a woman’s rights.

Beverley Harrison in an article ‘Our right to choose’ argues forcefully for the rights of the mother. She maintains that since the woman carries the embryo/foetus and has to go through the pain of childbirth and has to care for and support the child then it is the woman’s decision, which should be paramount. Harrison stated that:

‘The well-being of the woman and the value of her life plan should always be recognised as of intrinsic value’ (Page 152, ‘The Puzzle of Ethics’ Vardy & Grosch)

A philosophy professor Judith Jarvis Thomson argued that even if we grant that foetuses have a fundamental right to life, in many cases the rights of the mother override the rights of the foetus. Accordingly abortions should be allowed in rape, life-threatening pregnancies and contraception failure.

If a foetus was given equal rights then court cases would result and a mother could be forced to have an unwanted child. A court could even force a woman to go through a dangerous childbirth as her life would be considered to be of no more valuable than that of the foetus.

What about Christianity?

The Bible:

There is not one clear message about abortion found in the Bible. In Exodus 20: 18 it is stated ‘Do not kill’ which is a quotation used by many Christians in opposition of abortion. This passage may be seen as only applying to a ‘person’ and the issue of when the embryo/foetus becomes a person crops up again. In response to this a Christian may argue that the Bible teaches that a foetus/embryo is human as it is stated ‘Before I formed you in the womb I knew you’ (Jeremiah 1:5) and ‘You created every part of me; you put me together in my mother’s womb….. When I was growing there in secret, you knew that I was there, you saw me before I was born’. (Psalm 139:13 & 15). This does seem to imply that someone is human before birth.

We are told in Exodus 21:22-25 that if a person injures a pregnant woman, causing miscarriage, compensation must be paid. This suggests that the life of the ‘unborn’ has both significance and value. However at the same time in Exodus 21:22-25 we are also told that if the mother dies then a ‘life for life’ policy applies. This suggests that the unborn does not have the same significance and value as the mother.

The birth and role of Jesus is said to have been foretold, therefore his life was mapped out before birth.

In opposition to this however are passages which suggest that the foetus need not be considered human ‘a stillborn child comes without meaning, it departs in darkness’ (Ecclesiastes 6:3-4). This COULD be taken to imply that a foetus/embryo lacks humanity and we are also told that a man does not become a human being until he receives ‘breath of life’ (Genesis 2:7)

Christian Tradition:

Generally most churches are in favour of preserving human life but there are many different teachings on the status of the foetus. Many Christians accept abortion in order to save the life of the mother, or in the case of a severe deformity, but others argue that a person born with a deformity can still give and receive love as a human being and that the detection of such defects should not be grounds for an abortion.

The RC Church maintains that it is intrinsically evil and totally condemns it. Abortion goes against Natural Law, as it is not fulfilling the purpose of life ‘to live, to reproduce’ and also goes against the word of God. (See also Ensoulment). Pope Pius IX in 1869 decreed that anyone performing or allowing an abortion was wrong. The Catechism of the Catholic Church (1994) states that,

‘Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence a human being must be recognised as having the rights of a person – among which is the inviolable right of every innocent being to life.’ (Issues of life and death, Michael Wilcockson, page 36)

The Roman Catholic Church, and indeed most Christians would argue that since man was created in God’s image and likeness, so then is the foetus/embryo. God alone is lord of life and death and humans do not have the right to take away life.

The ‘sanctity of life’ argument may be given here. This is to say that life is sacred and that human life is valuable in itself. The term ‘sanctity of life’ means ‘a life set aside’ and Christians would say that God creates each life specially and uniquely. Human life is therefore intrinsically (i.e. in itself) worthwhile and we have a duty to preserve this life.

There is of course in Natural Law and the Christian position the principle of double effect. Double effect is a theory used to justify the termination of a foetus/embryo if the intention of doctors is to save the life of a mother. (E.g. hysterectomy)

In the case of an ectopic pregnancy, where the fertilised egg attaches itself to the fallopian tube the double effect justifies the removal of the fallopian tube as if it is not removed the mother will die. In this case if the pregnancy continues the mother and foetus will die and the double effect theory justifies the removal of the fallopian tube, because the intention is to save the mothers life even though the effect of doing so leads to the death of the foetus/embryo.

Even pro-life groups, such as SPUC would allow for DDE.

What do ethical theories say on this matter?

Virtue Ethics:

Would abortion be allowed in virtue theory?

Virtue Ethics concentrates on what a person is, rather than does. The aim of virtue ethics is a good life of well being (eudaimonia) It is an ethic of aspiration to be a better person and looks to those who have set a good example. Aristotle classifies the virtues and we must try to find the ‘Golden Mean’.

Would abortion be classified as an ‘extreme’ of behaviour? Well as you will remember Robert Louden argued that virtue ethics is of little practical use to someone faced with a moral dilemma as virtue ethics fails to address dilemmas, which arise in applied ethics, such as abortion. He gave the example of a woman who discovers that her baby will be born with severe disabilities. He asks how are we to know what a good person would do? How are we to choose between compassion and bravery?

Having an abortion could be classed as ‘cowardice’, ‘rashness’ etc. and one could say that Mother Teresa as a Christian would not have an abortion, but what about in certain circumstances? What if virtues clash?

Since Virtue Ethics focuses on the person, rather than actions or consequences of actions can we really say whether an abortion would be acceptable?

For Aristotle you cannot explain ‘right’ or ‘wrong’ simply in terms of rules, but rather you can show how a virtuous person can be trusted and do the right thing in a variety of situations, each of which may be unique and cannot therefore be covered by a way of a rule.

Relativist/teleological ethical theories and abortion:

• a)     Situationism (Notes from page 53, ‘Issues of Life and death’ (Wilcockson)

Since the 1960s many Christian theologians have argued that Jesus’ teaching was based on giving people their own freedom to act responsibly based on the principle of generous love or ‘agape’. Joseph Fletchers influential book ‘Situation Ethics’ (1966) coined this term and set out a Christian calculus, which decides each case on its own merits. This theory is absolutist in the agape part but this is the only absolute rule. Fletcher claimed that in any given situation the ‘right’ thing to do was that which love required.

Whilst this provides an alternative Christian ethic which is consistent with the Gospel representation of Jesus traditional Christian thinkers have rejected it. (E.g. Pope Pius XII-see Relativism booklet for more information).

Fletcher outlined a case in 1962 where an inmate of a mental hospital raped an unmarried, schizophrenic girl. Her father’s request for an abortion was denied because the only moral and legal grounds for abortion would have been if her life were at grave risk. Fletcher finds it shocking that this kind of rigid legalism could deny compassionate treatment.

The situationist answer cannot really be predicted because each case is unique but in the above case Fletcher argued that her mental health is paramount and furthermore ‘no unwanted and unintended baby should ever be born’.

Fletcher however, is far from clear about why and to what extent the embryo or foetus should be included in the calculus: (Taken from p.53, ‘Issues of life and death’ (Wilcockson)

They (situationists) would in all likelihood favor abortion for the sake of the patient’s physical and mental health, not only if it were needed to save her life. It is even likely they would favor abortion for the sake of the victim’s self respect or reputation or happiness or simply on the ground that no unwanted and unintended baby should ever be born.

They would, one hopes, reason that it is not killing because there is no person or human life in an embryo at an early stage of pregnancy (Aristotle and St Thomas Aquinas held that opinion-see Ensoulment), or even if it were killing, it would not be murder because it is self-defense against, in this case, not one but two aggressors. First there is the rapist, who being insane was morally and legally innocent, and then there is the ‘innocent’ embryo, which is continuing the ravisher’s original aggression! Even self-defense legalism would have allowed the girl to kill her attacker, no matter that he was innocent in the forum of conscience because of his madness. The embryo is not more innocent, no less an aggressor or unwelcome invader! Is not the most loving thing possible (the right thing) in this case a responsible decision to terminate the pregnancy? (Situation Ethics (1996) p.39)

Many people use the situation ethics principle to judge whether or not someone should have an abortion. Because situations differ in so many respects, then so should our response. Situation Ethics as put forward by Fletcher encouraged people to use the ‘agape’ principle – what would be the most ‘loving’ thing to do in the circumstances?

For this theory the question of whether abortion is morally acceptable cannot be answered, as it would depend upon each situation and specific circumstances of a particular mother.

This system allows for flexibility but the problem is, how can we be certain that our response will, in the long run, turn out to be the most loving? (Many people who have abortions regret their decision in later life.) Also if there are two ‘people’ involved, whose interest’s conflict, how should we decide whom to ‘love’?

If an end result serves ‘agape’ best then it is right.

b) Utilitarianism:

A short summary:

This theory can be summed up by the phrase, ‘the greatest happiness for the greatest number’.

At a first glance it may seem that abortion is straightforward for a utilitarian. If the mother’s happiness would be greater is she had an abortion, then abortion would be the right course of action.

However, it is more complicated than this, as other factors need to be taken into account. The foetus needs to be taken into account as if the foetus is to be considered ‘human’ then its happiness should also be taken into consideration. This does not mean that abortion becomes wrong. However, it does suggest that abortion would be ‘right’ in certain circumstances, such as if the mothers life is in danger. (May be more happiness if mother survived, rather than if both the mother and foetus died.)

In addition, other family members perhaps need to be taken into consideration for the ‘greatest happiness for the greatest number’. If other family members did not want the mother to go ahead with the abortion, or indeed if the father wanted the child, then abortion here would not be the ‘greatest happiness for the greatest number’.

In the case of pregnancy as a result of rape for example, the following would need to be considered alongside the ‘greatest happiness’ principle:

• Trauma for mother and existing family
• Trauma for any child of rape in learning of their violent origins.

Absolutist/deontological ethical theories and abortion:

Natural Law:

This has already been covered in the ‘Christianity’ section of this booklet and the potential to become a person and Ensoulment should also be taken into consideration. When the Christian examines natural law it is clear that nature’s design is that women are naturally equipped to have children. It is thus, natural for intercourse to lead to conception and for women to be pregnant and bear children (Final cause of sex=procreation.) Natural Law theory would claim that abortion is wrong, as the purpose of the body is to reproduce. The RC Church has opposed abortion for a considerable amount of time based on this tradition. There is however, the principle of double effect, which could be applied here. This principle could be seen as ‘relativist’, although the theory of Natural Law is essentially an absolutist theory.

The doctrine of double effect consists of fou