Abortion Law in the United Kingdom and the United States - Coursework Example

Abortion Law in the United Kingdom and the United States Introduction The essay will survey separately the laws of abortion in the United Kingdom and the United States. It will thereafter attempt to make a comparison between the laws of abortion of these two countries and identify areas of reform especially in view of the modern area of stem cell research as the current legal framework of abortion may be applied to stem cell research. The essay will conclude with historical legacies and different approaches adopted by the United Kingdom and the United States regarding embryonic protection in the context of abortion and compare it with the approach adopted by Germany. The UK Law on Abortion The Abortion Act of 1967 was modified by the Fertilization and Embryology Act of 1990.1 The modifications2 were widely hailed as a gain for the pro-choice movement3 because they established an upper time limit to terminate pregnancy at twenty-four weeks and extended the circumstances in which abortions could be performed to include terminations up until birth in the case of fetal handicap. The effect of the 1990 debates in Parliament over the Act's modification was to entrench in the public and parliamentary consciousness that abortion is permissible prior to viability of the fetus. Today, an abortion is lawful in the United Kingdom if covered by one of four grounds listed in the Human Fertilization and Embryology Act of 1990.4 The provisions of the Act allow for an abortion up to twenty-four weeks if approved by two doctors when "the social or environmental or living conditions of either the mother or her existing children are likely to be worsened by the continuation of the pregnancy."5 Furthermore, it tolerates abortion without time restriction on eugenic grounds if "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." Abortions for the most part are financed by the National Health Service under the National Health Service Act of 1977. The Act does place some restrictions on the availability of an abortion. Abortions are only permissible if the pregnancy has not exceeded twenty-four weeks. Beyond the twenty-fourth week, the risk of a grave mental or physical injury must exist before an abortion can be legally performed. The Act also provides physicians with broad authority over a woman's ability to terminate. To be consistent with the Act, an abortion can only be legally performed if two medical practitioners believe in good faith that one of the four grounds set forth in Section 1(1) of the Act has been met. The United Kingdom has approached abortion with a more liberal attitude, regarding pregnancy termination as "justifiable" and ethically acceptable.6 In fact, abortion has been reported to be one of the most common medical procedures in the United Kingdom with one in five pregnancies ending in abortion. The decision to authorize abortion after obtaining consent from two physicians has politically neutralized the issue by casting abortion as a private medical procedure to be determined by a qualified expert in consultation with his patient. Since abortion inside of the twenty-fourth week is permissible under the Act, there would seem to be no legal prohibition against derivation of embryos for research purposes based on the Act's requirements. In keeping with its early history of progressive liberalization of abortion laws7 and "a strong tradition of promoting scientific freedom," the United Kingdom currently has and promulgates an embryonic research philosophy and practice, which has progressed far beyond the rest of its European counterparts. The United Kingdom was at the forefront in adopting a statutory system for the effective regulation of stem cell research. "By opting to introduce legislation, the United Kingdom deliberately sought to ensure embryonic research would take place within formal, state-defined, ethical and legal boundaries." Investigations into in vitro fertilization were carried out by a research team in Britain during the 1970s, which resulted in the birth of the first baby ever conceived through in vitro fertizilation in 1978. Thereafter, embryological research and experimentation to assist with reproduction expanded rapidly in the United Kingdom, the United States, and Germany8. The US Law on Abortion The development of therapeutic abortion law proceeded on a different course in the United States than in the United Kingdom. With limited exceptions, almost all U.S. states had made abortion an unlawful act by the twentieth century.9 The states' ability to prohibit abortion was challenged in 1973, when a restrictive Texas abortion statute was overturned by the U.S. Supreme Court in Roe v. Wade.10 In Roe v. Wade, the Supreme Court secured a woman's constitutional right to obtain a therapeutic abortion in the first trimester of pregnancy by determining that a state's interests in the protection of fetal life was not strong enough to support the prohibition against abortion. The 1973 decision in Roe v. Wade evoked a political and social debate wherein "abortion has been at the centre of a bitter and seemingly intractable domestic war" resulting in hundreds of legislative initiatives at state and federal levels, a flurry of litigation, didactic debate, and unfortunate public rebellion.11 Further, the issue plays a pivotal role in the election of public officials, including the president of the United States. The United States' preoccupation with abortion is unparalleled in the international community. Several reasons for the American "anomaly" have been advanced, including: religiosity, individualism, self-righteousness, inability to form consensus, preoccupation with evil, and normative sexual attitudes. The circumstances surrounding the Court's holding in Roe v. Wade have also contributed to public opposition. The decision was not sanctioned by a protracted period of legislative and public debate. Further, it established one of the most permissive pre-viability abortion frameworks in the world by making abortion a privacy right protected by the Constitution. Despite changes in the Court's political composition, Roe v. Wade's basic principles were reaffirmed at least a dozen times in the ten years following the opinion.12 Additionally, Roe's "essential holding" was upheld in the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.13 In Casey, the Court held that state regulations that have the "incidental effect of increasing the cost or decreasing the availability" of abortion are permissible, so long as the state does not impose an undue burden on a woman's ability to make the termination decision. Today, the availability of abortion in the United States varies greatly between states.14 In some states abortion is freely available even in the later stages of pregnancy. In other states, laws regulating abortion can be so restrictive as to violate the Supreme Court's prohibitions on undue burdens in Casey. These laws continue to be a source of litigation. States opting to restrict pre-viability abortions do so through laws providing for "mandatory waiting periods, limitations on [public] abortion funding, provisions that allow medical providers and institutions to refuse to perform abortions as directed by their consciences, [and] prohibitions against abortion counseling by public employees or publicly-funded agencies." The availability of abortion is further hindered by anti-abortion groups who protest outside abortion clinics. Despite state restrictions, abortion is still a common procedure in the United States. The Court's holdings in Roe and Casey would seem to suggest there is no constitutional prohibition on the destruction of early stage human embryos for biomedical purposes in the United States. In Roe v. Wade, the Court held that the word "person" in the U.S. Constitution, and particularly under the protections of the Fourteenth Amendment, does not include the unborn. In finding that the unborn were not "persons," the Court was able to avoid determining whether a fetus had legal rights prior to viability under the Constitution. "The Supreme Court has never acknowledged that the unborn have rights independent of what an individual state may choose to recognize."15 At least one federal court has found that human embryos lack standing to bring suit because they are not persons within the meaning of the Constitution. In Doe v. Shalala, the would-be plaintiff, Mary Doe, was described in the amended complaint as a "pre-born child in being as a human embryo." She and another individual with Down's syndrome sought a preliminary injunction seeking to enjoin the activity of the National Institutes of Health (NIH) Human Embryo Research Panel on the grounds that Section 101 of the NIH Revitalization Act of 1993 violated the U.S. Constitution. The immediate goal was to forbid the Panel from recommending to the NIH or the secretary of Health and Human Services that research on human embryos be supported by federal funding. Mary Doe was allegedly among more than 20,000 embryos existing in U.S. in vitro laboratories. After the Revitalization Act passed, the NIH began receiving applications requesting financial aid for research on human embryos. During the fall of 1993 and pursuant to the law, a panel was appointed and charged with preparing a report concerning "moral and ethical issues raised by the use of human embryos in research" and creating federal funding "guidelines." Mary Doe sought to block issuance of the report, which she argued would deprive her and others like her "of life and liberty without due process of law, subject them to cruel and unusual punishment, and deprive them of their right to privacy." 16 The court held, in part, that Mary Doe lacked standing to litigate her claims because she was not a person recognized by the Constitution. The court stated that putting "philosophical and religious considerations aside, the Supreme Court has made it clear that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." Since Roe did not assign a precise moral or legal status to fetal life, one commentator has argued that the "decision . . . still leave[s] it to the legislative branch to determine whether embryos can be killed in the name of scientific progress." Comparing U.K. and U.S. Laws on Abortion: Reforms for Stem Cell Law The main difficulty faced by any Western democracy seeking to pass legislation on stem cell research has been the identification of regulations which adequately defend the rights of embryos while allowing for some degree of exploitation. The United Kingdom contrasts with Germany in being a nation with highly permissive stem cell legislation. Currently, in the United Kingdom, the HFE strictly regulates research on human embryos. The HFE was enacted after a lengthy period of public and parliamentary discourse. The legislation was made possible because the abortion issue was of minor political importance, there was little religious opposition, and Parliament believed the benefits of continued research simply outweighed the moral costs. The system developed in the United Kingdom has garnered the trust of its people and is well respected. The HFE allows for the creation of embryos for scientific purposes, and for continued experimentation and even innovation with the permission of the HFEA. The United Kingdom's stem cell legislation remains perhaps the most liberal in the entire world community. 17 The United States has taken a market-oriented, hands-off approach to stem cell research, and there is no national law governing stem cell research in the United States. A significant drawback to the American approach is that by allowing scientists to conduct research with little public oversight, ethical constraints that might be in place if a regulatory body existed do not exist. The ostensibly inconsistent and politically-fractured situation regarding the use of federal funds to support stem cell research in the United States is reflective of a greater inability within American society to agree on the issue of abortion. The political dichotomy created by Roe v. Wade has polarized the nation on the issue of abortion. During the 1980s, the Republican Party linked its pro-life platform to embryological research. Today, conservative pro-lifers continue to condemn stem cell research under a belief that life begins at conception and derivation processes are equivalent to abortion, while scientists and patients' groups urge that results from research on early-stage embryos have the potential to cure a range of congenital diseases. Interestingly, the court in Roe v. Wade held that the word "person" in the Constitution does not include the unborn; therefore, stem cell research and specifically the derivation of embryos would seem acceptable as a constitutional matter in the United States. It is noteworthy that in contrast to the UK and the US, Germany has one of the most restrictive national policies regarding stem cell research in the world community. Germany's strict abortion regime is consistent with its recently enacted repressive stem cell legislation. The German constitutional framework establishes a right to life and a right to human dignity. Therefore, German abortion and stem cell legislation must incorporate these values. Initial legislation on embryonic research (passed in 1990) reflected the urgent need to prevent any scientific inquiry with eugenic applications in Germany. However, pressures mounted as the biomedical prospects of stem cell research became apparent. As a result, Germany reconsidered the question of stem cell importation and now allows for the importation of stem cell lines from other nations under very strict guidelines. These restrictions are explicit in banning the importation of stem cell lines derived after January 2002. Further, lines can be imported only if experimentation on animal stem cells has been exhausted and the research project cannot be expected to go forward without the use of human ES cells. Germany has adopted perhaps the most rigid stem cell legislation in all of Europe. The United Kingdom, the United States, and Germany have historical legacies regarding embryonic protection in the context of abortion. These legacies have shaped the social, political, and legal environment of the stem cell debate. Clearly, each nation has attempted to provide for scientific progress while protecting embryonic rights, albeit, from divergent approaches. Despite their current differences, Germany and the United States have recently agreed to greater support of embryological experimentation. Further, the stem cell lines available to the United States and Germany under current legislation may eventually prove inadequate for sustained scientific research. Therefore, a convergence of laws and regulations toward a system similar to that of the United Kingdom may be inevitable if these nations desire to stay on the forefront of biomedical technology. References: Aurora Plomer, ‘Beyond the HFE Act 1990: The Regulation of Stem Cell Research in the UK’ (2002) 10 Med. L. Rev. 132 Christina P. Schlegel, ‘Landmark in German Abortion Law: The German 1995 Compromise Compared with English Law’ (1997) 11 Int'l J.L. Pol'y & Fam. 36 Christine L. Feiler, ‘Human Embryo Experimentation: Regulation and Relative Rights’ (1998) 66 Fordham L. Rev. 2435 Dilys Cossey, ‘Campaigning for Abortion Law Reform’ in Abortion Law and Politics Today (Ellie Lee ed., 1998) [hereinafter Abortion Law] Ellie Lee, Editor's Introduction to Abortion Law (Ellie Lee ed., 1998) Erin P. George, ‘The Stem Cell Debate: The Legal, Political and Ethical Issues Surrounding Federal Funding of Scientific Research on Human Embryos’ (2002) 12 Alb. L.J. Sci. & Tech. 747 Frances Kissling & Denise Shannon, ‘Abortion Rights in the United States: Discourse and Dissension’ in Abortion Law (Ellie Lee ed., 1998). Human Fertilisation and Embryology Act 1990, c. 37, pmbl. (Eng.) Madeleine Simms, ‘Abortion Law Reform in Britain in the 1960s-- What Were the Issues Then?’ in Abortion Law (Ellie Lee ed., 1998) Mary Warnock, A Question of Life: The Warnock Report on Human Fertilisation and Embryology (CUP, UK, 1985) R. Alta Charo, ‘The Hunting of the Snark: The Moral Status of Embryos, Right-to-Lifers, and Third World Women’ (1995) 6 Stan. L. & Pol'y Rev. 11 Sally Sheldon, ‘The Abortion Act of 1967: A Critical Perspective’ in Abortion Law (Ellie Lee ed., 1998) The Alan Guttmacher Inst., ‘State Facts About Abortion: Kentucky (2004)’ accessed 25 March 2008 Timothy Stoltzfus Jost, ‘Rights of Embryo and Foetus in Private Law’ (2002) 50 Am. J. Comp. L. 633 Wikipedia, Abortion in the United Kingdom accessed 20 April 2008 ‘More on UK Abortion Law’ accessed 25 March 2008 Untitled accessed 26 March 2008 ‘History of Abortion Law in the UK’ accessed 25 March 2008 Untitled accessed 28 March 2008 Untitled accessed 25 March 2008 Untitled accessed 22 March 2008 Read More