The Decision to Conduct an Abortion - Essay Example

of the of the Concerned Law 22 February Abortion: English Abortion Law Delivers neither Sufficient Protection for the Foetus, Nor Sufficient Respect for the Autonomy of Pregnant Women. Introduction Considering the current status of abortion as being a political hot potato, it does appear that abortion is a relevantly recent and contemporary issue. However, it is far from being true. The history of abortion is as old as the history of pregnancy. The instances of abortion are documented in the ancient Jewish, Greek and Roman texts, and societies since times immemorial have tried to bring the issue of abortion within the ambit of law (Sheeran 1987, p. 50). The Jewish law considered a foetus to be an integral part of a woman’s body, yet, allowed for abortion only to save a woman’s life (Sheeran 1987, p. 50). Very much like the Jewish Law, Romans considered a foetus to be an entity sans any legal and political rights (Sheeran 1987, p. 50). Romans never allocated any penalty for abortion; however the Roman law evinced a predilection towards change, when the debate as to the exact time of animation began to gain grounds (Sheeran 1987, p. 50). Still, pragmatically speaking, the Romans assigned no ethical or legal importance to the issue of abortion. In case of the Greeks, Plato and Aristotle deemed abortion to be a practical method of birth control (Sheeran 1987, p. 50). Greeks do confabulated on the exact timing of animation, yet they didn’t consider abortion to be a crime (Sheeran 1987, p. 51). It was with the advent of Christianity that the debate as to at what time a foetus could be deemed to be endowed with life became more intense (Sheeran 1987, p. 51). However, pragmatically speaking, there had been a conflict existent amongst the theory and practices surrounding the issue of abortion. However, in a contemporary context, the moral, legal and health implications of abortion have increasingly become important issues with the altering dynamics of social structuring (Cox 2011; Gerrard 2009). Through the evolving times, the advancement of science has significantly evolved safer methods of abortion (Keown 1998). But it was always subjected to the ethical, legal and religious perspective rather than as an empowered decision based on the principle of autonomy. As such, today the English abortion law neither gives sufficient respect for the autonomy of pregnant women nor sufficient protection for the foetus. Women’s Autonomy The decision to conduct an abortion is indeed critical in the sense that it should be the woman who should have the primary prerogative to decide as to whether she wants an abortion to be performed. The Principle of Autonomy is of huge importance as it should be the women who should have the right to make decisions regarding their health (LaFollette 2007). But the Section 1(1) of Abortion Act of 1967 insists that two registered medical practitioners must certify the grounds of abortion that blatantly overrides the social and emotional considerations that may make a woman opt for an abortion. English Abortion Law: A Historical Perspective In that context it is imperative to delve into the history of the British Legal approach towards the issue of abortion. It was in 1803 that abortion was criminalized, thereby formally making abortion a crime (Tribe 1992, p. 61). The penalties for abortions before quickening stood to be utterly harsh measures like imprisonment, whipping or exile. A post quickening abortion was at least theoretically met with a death penalty. However, the dynamics of British jurisprudence somehow removed the notion and concept of quickening in 1838 (Tribe 1992, p. 61). Though professedly speaking the theoreticians attribute the benign reasons like protecting the lives of women resorting to non-medical and crude methods of abortions as an excuse for harsh abortion laws, commonsensical speaking, the practices of the British legal framework evinced little respect for the woman autonomy, while designing abortion laws. These harsh legal measures degrading the autonomy of women further continued in the Offenses Against the Person Act of 1862 (Tribe 1992, p. 61). This Act not only validated a life imprisonment for any individual or group including the woman herself, trying to procure an illegal abortion, but also allocated a three year sentence to a person trying to aid or help conduct an illegal abortion (Tribe 1992, p. 61). Sadly speaking this Act failed to clarify as to what type of abortion was to be considered to be illegal or for that matter whether abortion was legal or not. Thanks to the advancement in medical science that it began to dawn on the English legal fraternity that sometimes performing an abortion could save a women’s life. Nudged by these scientific developments, the British Parliament passed the 1929 Infant Life Preservation Act, which laid down that abortion was a crime except when performed in those circumstances in which it was held in good faith that the conducting of an abortion could really save a women’s life (Tribe 1992, p. 61). However, this law did not in any way empowered women and rather left to the women the onus of arguing with doctors as to whether an abortion was a necessity and justifiable in ‘good faith’. Lately, it was in 1938 that a pragmatic interpretation of the 1862 Act became accessible to the women in Britain, when Aleck Bourne, a qualified doctor, performed abortion on a 14 year old girl who happened to be a victim of rape (Tribe 1992, p. 61). While acquitting Dr. Bourne, the court noted that under some circumstances it may be necessary for a doctor to perform abortion on a woman to save her mental and physical health. In fact, the Court went to the extent of deciding that under some circumstances, it is the affirmative duty of a doctor to perform an abortion on a woman. Yet, as it was with the previous laws on abortion, this case did little to make women the eventual arbitrators of their health and to extend to the women the autonomy to take important decisions impacting their physical and mental health. It was primarily motivated by a somewhat liberal mood that the British Parliament passed the Abortion Act of 1967. Though in a pragmatic context, considering the fact that the risk to the life of a woman in opting for an early abortion compared to carrying a pregnancy to term is much less, this law allows for availing abortion facilities at early stages of pregnancy, still this law leaves the onus of deciding as to whether an abortion is a safer health option in a specific situation on two medical practitioners. Though this act is considered to be a victory for the autonomy of women, still in its theoretical interpretations, it keeps the women subservient to the opinion of doctors, while deciding as to whether they should have an abortion or not. Women’s Autonomy: subject to Medical Professionals Birth of child must be subject to women’s autonomy to decide if the socio-economic and emotional conditions are conducive for woman to provide child with good nurturing environment. Thus empowerment of woman becomes intrinsic to the decision of abortion. Importantly, amendments to Abortion Act under English Laws are testament to the fact that wider perspectives of social engineering should be considered (Sheldon 2009). The Aleck Bourne case of 1939 was a landmark decision that set precedent for lawful abortion (Sheldon 1997). The case expanded the scope of abortion to include the mental and physical well being of women rather than with the sole purpose of saving woman’s life. Conscientious clause of Abortion Act 1967 is also pertinent as it gives right to doctors to refuse on moral ground which as per BMA supporters ‘have their views on termination of pregnancy’ (2007). The clause is hugely retrogressive as it not only denies the wider imperatives of abortion and intrudes on the autonomy of woman but it also delays the assessment process of consent that adversely impacts the health of pregnant woman. Women and the Right over their Body It goes without saying that the very existence of a foetus is solely dependent on the woman carrying that foetus. So any law aimed at protecting the right of a foetus, could not sideline the emotional and physical well being of that woman. Besides, allowing women a say in the important health decisions is not merely about legal autonomy, but rather something much more than that. In a woman’s sense of identity and self, her body plays a major and pivotal role (Albury 1999, p. 29). Hence a yearning to gain autonomy in the important personal health decisions is actually a yearning to have the right to define one’s identity in relation to one’s body (Albury 1999, p. 30). Hence, the patronizing role that the Abortion Act 1967 allocates to the health professionals in relation to the women, who come seeking an abortion at the health facilities, in a way degrades and demeans the status of women seeking an abortion. Such an approach devalues women by treating them as mere bodies devoid of any rational decision making abilities. English Abortion Law: Paternalistic It does need to be mentioned that the approach towards abortion enunciated by the British Abortion laws, in a way tends to perpetuate the paternalistic notions of womanhood (Stetson 2001). It tends to uphold the long standing belief that pregnancy and child bearing are the two cardinal duties of a woman and in case a woman intends to terminate a pregnancy, she should be subject to the opinion of some higher medical and moral authority (Stetson 2001). Hence in a way, the Abortion Act 1967 tends to continue with the traditional paternalistic despotism (Stetson 2001). It intends to envisage women as individuals who should opt for parenthood and pregnancy, rather than choosing to eliminate a pregnancy to be more active in other professional and career pursuits (Stetson 2001). Hence, to put it simply, the English Abortion Law to a great extent disrespects the ability and wisdom of women to opt for wiser and informed decisions regarding the personal health issues like pregnancy and abortion. Sidelining Women from Actual Decision Making One of the great ironies inherent in the English abortion law is that it attempts to remove women from the important decisions pertaining to their body and health (Caine 1997, p. 239). Rather than perceiving women as mature individuals capable of taking important decisions pertaining to their reproductive health, the Abortion Act 1967 takes women to be naive infants whose decisions should be kept subservient to more well informed medical bodies of opinion. Though there is no denying the fact that the opinion and influence of medical professionals could indeed help a woman going for an abortion, it does not mean that this need for medical opinion as enshrined in the English Abortion Law should deride and doubt the right to self determination of a woman. The English Abortion law holds a very limited attitude towards expert opinion in the sense that it evaluates the choice to abort in the light of medical facts and opinions only (Caine 1997, p. 251). In a practical context, when a women decides to go for an abortion, she tends to consider varied other factors like her ability to pursue a fulfilled professional and personal life, her and her partner’s economic wherewithal to sustain a pregnancy and to take care of the child born of that pregnancy, the status and recognition that the family and society will accrue to the child to be born, etc (Caine 1997, p. 251). In contrast, the insistence of the English Abortion Law to confine itself to the opinion of two medical practitioners, while arbitrating decisions on important issue like abortion and pregnancy, downplays the varied economic, psychological and social factors impacting pregnancy and abortion. No Provision from Informed Consent So, the English Abortion Law even in these modern times remains detached from the women’s decision making competence, inhibiting women from the power to exercise an informed consent, as is done in many other medical procedures. There is no denying the fact that there is a massive scope for reforms in the English Abortion Law as it is today. As per the law, the women simply cannot avail an abortion because they want to. A request for abortion needs to be corroborated by the opinion of two doctors that the abortion is necessary to safeguard the mental and physical health of the woman seeking the abortion. This approach towards abortion envisages the issue of abortion from a purely medical perspective. Yet, the irony is that it no way extends to abortion the prerogative of informed consent as is common in varied medical procedures. Besides, the English Law’s approach towards abortion is totally oblivious of the economic, social and psychological considerations, which may make a woman to opt in favour of an abortion. Any plea to make abortion totally legal will be too much to ask for considering the current political and ethical status quo in the United Kingdom. However, what the state can do is to bring out the sanction for an abortion out of the sole dominion of the medical professionals, and create commensurate social, economic and psychological frameworks and mechanisms that look into the validity of a request for abortion, along with the attached medical opinion. For, it has commonly been observed that not always, abortion is sought by women out of purely medical considerations, but many a times, social and economic ramifications also do have a vital say in the abortion related decisions. Abortion in cases of rape, pregnancy of women who are not mentally or physically fit to either carry foetus for whole nine months or look after them after birth is critical issue (Savulescu 2001; Steinbock 1994). Abortion on grounds of foetal abnormalities is also not well defined within law (Collyns et al., 2009). Need for Reforms Pragmatically speaking, it has been a long time since any meaningful reform has taken place in the Abortion Act 1967. There is no denying the fact that the Abortion Act 1967 is anachronistic in the sense that it reflected the medical, social, ethical and political realities of the 60s. However, since 60s, many things have changed, including the status of the women in the society, the proportion of women participation in the British work force, the clout of the women in the British politics and their say in the social, administrative and judicial institutions. So, pragmatically speaking, the Abortion Act 1967 is not in consonance with the aspirations and desires of the contemporary British women. When the Abortion Act 1967 came into existence, it was deemed to be a much liberal statute in the sense that it aimed to protect the British women from the risks associated with the illegal abortions. In the present context, this law gives the doctors the right to decide whether a woman could go on with an abortion and in no way gives a woman the right to opt for an abortion because her immediate domestic, social and economic realities do not allow her to carry a pregnancy to its term. So, the English abortion laws need to changed to extend to women a greater say in the decision making process associated with any abortion. Even if one sets aside the predominant ethical and legal imperatives governing the English Abortion Law, in a practical and pragmatic context, the Abortion Law tends to intervene into the medical decisions associated with women on the primary context of respecting and safeguarding the rights of a foetus. However, the very notion of the rights of a foetus is open to diverse ethical and legal interpretations and within the scope of those interpretations it is sad to say that the English Abortion Law fails to extend sufficient protection to a foetus, while disrupting the rights of the women to have a primary say in the medical decisions impacting their general health, life and social and economic realities. In that perspective, it is imperative to analyze the extent of protection that the English Abortion Law extends to the foetus and the extent to which it successfully manages to uphold the rights of a foetus. Rights of a Foetus: Is Foetus and Independent Entity If one attempts an ethical and legal catechism of the rights extended by the English Abortion Law, one easily comes to the conclusion that it scarcely manages to protect the rights of a foetus. The Abortion Act 1967 fails to ethically and logically mark the time limit as to when a human embryo is capable of being born as a human being. In the light of the Infant Life (Preservation) Act 1927, it was a criminal offense to terminate the life of a foetus that was capable of being born as a human. This Act set the time range of the viability of a human foetus at twenty eight weeks. The Abortion Act 1967 upheld the status quo held by the Infant Life (Preservation) Act 1967. Later on with the passing of the Human Fertilisation and Embryology Act in 1990, this time limit was reduced to twenty four weeks. This change was based on the belief that a child born at this stage of gestation could be successfully kept alive by the medical science. When Does Life Begin However, in an ethical context, the Abortion Act 1967 opted for a short cut while dealing with the question as to when does the human life actually begins. Some believe that the status of human life could even be attributed to the eggs and sperms as they have the potential to begin a human life. However, even if one approaches the problem of the beginning of human life in a pragmatic context, it would be really interesting to grapple with the ramifications of Abortion Act 1967 in the light of the varied developmental stages of a human foetus. At the time of conception, when an egg is fertilized, it unique genetic code or genome gets fixed in the sense that it is totally capable of determining the varied characteristics of the human being that, that embryo is capable of maturing into (Carlson 2008). Not only this embryo has the potential of developing into a human being, but is also capable of dividing, so as to start two or more human lives (Carlson 2008). Four or five days after conception, when say the eighth cell division takes place, one or more than one lives initiated by this embryo tend to have their own placenta (Carlson 2008). Roughly after fourteen days after the conception, the embryo travels up the fallopian tube and implants itself in the womb (Carlson 2008). Once the embryo implants itself in womb, it starts growing at a fast pace. Within the ten weeks of conception, the embryo or embryos implanted in the womb start developing the central nervous system, which means that at this stage of conception, the embryo is well capable of feeling pain (Carlson 2008). RCOG (2010) report clarifies that a 24 weeks foetus can feel pain and therefore makes abortion illegal subject to other conditions like foetal abnormality or risk to the life of woman thereby failing abysmally in safeguarding its interests. So while trying to answer the question as to when does the human life actually begin, considering the varied stages of conception and taking into account the fact that at a ten weeks old embryo is capable of feeling pain, one could choose to believe that human life begins at any stage one chooses to believe that it begins. Abortion Act 1967 devalues the life existing in the embryonic stage by deeming the ability to exist as an independent being as the only condition for being recognized as being worthy of some human rights. The irony inherent in the Abortion Act 1967 was that it was passed to protect the rights of the women over their body while setting aside the rights of a foetus, yet, as per the same law; a woman is required to procure the consent of two medical practitioners to get an abortion. So on the one side the Abortion Act 1967 severely curtails the rights of women needing an abortion, over their body by keeping them subservient to the opinion of two medical practitioners, while on the other side it fails to extend due importance to the protection of a foetus by setting the time limit for getting an abortion performed at 24 weeks. Hence, it is unjust to both the women and the foetus. Discriminatory Laws Abortion Act 1967 states that an abortion could be performed if it is held in good faith that the child to be born faces serious mental and physical abnormalities, which would make one seriously handicapped. This approach towards termination of pregnancy smacks of eugenic ethics. Sheldon and Wilkinson (2001) assert that law is insufficient in protecting the life of foetus as it discriminates against impaired and non impaired foetuses. Foetal abnormality was recognized as legitimate reasons for abortion through amended Abortion Act 1967 known as HFE or Human Fertilization and Embryology Act 1990 vide Section 1.1.d. This is critical aspect of law that denies a person of its right on the basis of ‘assumed disability’. Abortion Act 1967 pursues a utilitarian approach towards foetal protection by denying the right to life to a foetus on the basis of a presumed abnormality manifesting itself in the future. Abortion on grounds of foetal abnormalities is also not well defined within law (Collyns et al., 2009). Besides, this injustice towards and denial of rights of foetuses could have been deemed tolerable, had they extended some strong rights to the party on the other side, that are the women opting for an abortion. Abortion Law deprives women of their right to make decisions about their health. Abortion in cases of rape, pregnancy of women who are not mentally or physically fit to either carry foetus for whole nine months or look after them after birth is a critical issue which the Abortion Law tends to overlook (Savulescu, 2001; Steinbock, 1994). Conclusion To put it simply, any abortion law needs to strike a balance between the rights of two entities involved that are the women having an abortion and the foetus that is to be aborted. Sad, to say, but the English Abortion Law has miserably failed to achieve this delicate balance. It neither extends due protection to the foetus, nor does it extends ample or even optimal respect to the women having an abortion. There is a wide scope for reforms in the English Abortion law. It needs to be more in tandem with the current realities and circumstances. Reference List Albury, Rebecca M 1999, The Politics of Reproduction, Allen & Unwin, St. Leonards, N.S.W. BMA (November 2007), The Law and Ethics of Abortion, viewed 22 February 2012, . Caine, Barbara 1997, English Feminism, 1780-1980, Oxford University Press, Oxford. Carlson, Bruce M 2008, Human Embryology and Developmental Biology, Mosby, New York. Collyns, O, Gillett, G & Darlow, B 2009, ‘Overlap of Premature Birth an Permissible Abortion’, Journal of Medical Ethics, Vol. 35, Issue 6, pp. 343-347. Cox, DRA 2011, ‘The Problems with Utilitarian Conceptions of Personhood in the Abortion Debate’, Journal of Medical Ethics, Vol. 37, Issue 5, pp. 318-320. Gerrard, JW 2009, ‘Is it Ethical for a General Practitioner to Claim a Conscientious Objection when Asked to Refer for Abortion?’, Journal of Medical Ethics, Vol. 35, Issue 10, pp. 599-602. Keown, John 1998, Abortion, Doctors & Law, Cambridge University Press, Cambridge. LaFollette, Hugh (Ed.) 2007, Ethics in Practice, Blackwell, Oxford. RCOG 2010, Foetal Awareness Review of Research and Recommendations for Practice: Report of a Working Party, RCOG Press, London. Savulescu, J 2001, ‘Is Current Practice Around the Termination of Pregnancy Eugenic and Discriminatory? Maternal Interests and Abortion’, Journal of Medical Ethics, Vol. 27, Issue 3, pp. 165-171. Sheeran, Patrick J 1987, Women, Society, the State, and Abortion, Praeger, New York. Sheldon, Sally 1997, Beyond Control, Pluto Press, London. Sheldon, Sally & Wilkinson, S 2001, ‘Termination of Pregnancy for Reason of Foetal Disability: Are their Grounds for a Special Exception in Law?’, Medical Law Review, Vol. 9, pp. 85-109. Steinbeck, B 1994, ‘Reproductive Rights and Responsibilities’, Hastings Centre Report, Vol. 24, Issue 3, pp. 15-16. Stetson, Dorothy Mcbride (Ed.) 2001, Abortion Politics, Women’s Movement, and the Democratic State, Oxford University Press, Oxford. Tribe, Laurence H 1992, Abortion: The Clash of Absolutes, New York, W.W. Norton. Read More