The Abortion Act 1967 and The Human Rights of The Fetus - Research Paper Example

Does the Abortion Act 1967 provide sufficient protection for the human rights of the foetus? Introduction The concept of abortion seems to be as oldas pregnancy itself. Wilful abortion was practiced in ancient Greece and Rome. It was also widely practiced in many other ancient civilizations. With the advent of western civilization the issue came into debate for its medical and ethical repercussions. In the last two centuries it became a legal issue as well and both legislation and courts dealt with it in detail. In the below discussion we will see what abortion is, its history and particularly the evolution of abortion law in England. We will then examine the Abortion Act 1967 and the protections provided to foetus under it. Definition of Abortion In medical terms Abortion may be defines as ‘the premature exit of the products of conception (the foetus, fetal membranes and placenta) from the Uterus’.1 It is important to understand that under medical sense an abortion and miscarriage are the same things and anything that causes the loss of pregnancy is called abortion irrespective of the fact that why and how the pregnancy was lost. In legal sense following may constitute an abortion: 1. The premature termination of a pregnancy. 2. The intentional and artificial termination of a pregnancy that destroys an embryo or foetus. 3. The spontaneous expulsion of an embryo or foetus before it is capable of living outside the womb.2 In the below discussion abortion would mean an intentional and artificial termination of the pregnancy as spontaneous termination is a purely medical issue and out of the scope of this core legal debate. Early History of Abortion There are many reports that abortion was practiced in ancient Greece and Rome. These societies were not concerned with the health or life of the unborn and it was solely the choice of the parents if they wanted to perform it or not. Famous philosopher Aristotle is reported to have said, “When couples have children in excess, let abortion be procured before sense and life have begun”. 3 Abortion is also discussed in Old Testament. Hebrew history shows that an unborn child was considered to have legal status as a complete man.4 If we move little further into the western history we find that Abortion was mostly acceptable in that society. In most of Europe the concept of ‘quickening’ was prevailing regarding foetus. It meant that until the time where the foetus started to move into the womb it was considered as a part of mother’s body5 and any loss of such foetus was considered as only a surgical issue as compared to an ethical or legal problem. In America the situation was a little different though. In most of colonial America it was strictly prohibited as per the law; but the real situation was not much different even there. It was widespread and practiced across the board. Law on Abortion in England In England the Common Law system prevailed which is a unique system of law based upon custom and convention so the Common law reflected both legal as well as social understanding of the abortion issue in England. Under the English Law abortion was not a crime before quickening but once the foetus started to move independently in the mother’s womb it was considered a crime to abort it. Such quickening was considered to have happened after around 19 weeks of pregnancy. Below is a chronological list of development of Abortion Laws in England over the past 200 years. Lord Ellenborough’s Act 1803 was introduced which declared the abortion of a ‘quick’ unborn child as crime of a human being and subject to death penalty. 6 The Offenses against the Person Act 1828 replaced it but the crime and penalty remained the same. 7 The Offenses against the Person Act 1837 changed the requirement of ‘quickening’ and also abolished the death penalty for abortion. 8 The Offenses against the Person Act 1861 replaced the 1937 Act. Under the new Act a person may be sentenced to life imprisonment for performing abortion. It also barred any abortion surgery even if there was a danger to the pregnant women and an abortion was required medically. 9 The Infant Life Preservation Act 1929 changed the abortion law significantly and for the first time a clear distinction was made between legal and illegal abortion. The Act allowed medical practitioners to perform abortion if it was necessary for the life or health of the mother. 10 By mid 1930’s there were voices being raised against the existing abortion laws and in 1936 the abortion law reform association was created under the patronage of British Medical Association to further to cause of improved law on the issue. 11 The Bourne Case was the corner stone of changes in the abortion laws in England. In the case a 14 years old girl was raped and subsequently became pregnant. A trial was commenced against the doctor who performed the surgery but court ruled in doctor’s favor citing the reason that girl’s mental health did not allow her to give birth to the child. 12 The Abortion Act 1967 All the above stated developments in the area of abortion laws clearly signify a gradual shift in the approach of law over the past couple of hundred years. These developments subsequently led to the Abortion Act 1967. The Act has many political faces apart from the legal ones. Feminists looked at it as a success for women rights; those who supported abortion claimed that this Act is the corner stone in allowing this right; those who opposed abortion claimed that it was a step in the wrong direction. The reality is that it was essentially an Act designed to address a health issue. Under the new law, abortion remained a crime but it created certain exceptions to this rule on medical grounds. It was allowed to abort a child if there was a good reason to it and two doctors gave it in writing that an abortion was required. It is interesting to note that the Act did not allow a woman to decide about aborting but rather put the onus on doctors’ advice. Salient features of the abortion Act 1967 The Abortion Act 1967 is an Act open to much interpretation. It cited situations where medical professionals may decide to abort an unborn child thus creating exception to the general rule that abortion is a crime. It was a big step toward mother care is before that no surgery for abortion could be made even if it created danger for the mother. The emergency situations cited by the Act, where an abortion may be done, can be summed up as following: 13 Where a continuation of pregnancy would cause serious threat to the life of the pregnant woman. Where a continuation of pregnancy would cause serious injury to the physical health of the pregnant woman. Where the continuation of pregnancy would cause serious injury to the mental health of the pregnant woman. Where the continuation of pregnancy would cause serious injury to the mental health of any child in the existing family of the pregnant woman. Where the continuation of pregnancy would cause serious injury to the physical health of any child in the existing family of the pregnant woman. Where there is every chance that the unborn child –if allowed to born- would have serious mental abnormalities. Where there is every chance that the unborn child –if allowed to born- would have serious physical abnormalities. It is pertinent to note that all above grounds apply on one condition: That the continuation of pregnancy would result in more damage to the woman or existing children than the termination of pregnancy. If , in any case, the abortion is more dangerous than continuation of pregnancy than it would be considered as a crime punishable under existing laws. Protections Provided to the Foetus under the Act It is a misnomer than Abortion Act 1967 legalized abortion; it only created exceptions to the general rule. Under the Act a certain set of conditions were laid down where abortion may be performed but it was under strict check and balance. The Act gave importance to the life and health of the mother over the foetus but also looked to ensure than the human rights of an unborn child were not completely forgotten in the context. That is why certain limitations were also framed. Let us have a look at the points which provided protection to the foetus. 1. Medical Advice of at-least Two Doctors The Act of 1967 allowed for abortion on the advice of at least two medical practitioners. 14 The purpose of this is very clear. First, it will ensure that no child is aborted because of a wrong diagnose from the doctor and even if there is a mistake from one doctor the other may rectify him thus only allowing an abortion when it is the only possible solution to the health issue of the mother. Second, it ensured that mom-professionals may not be able to recommend abortions and thus only that foetus may be aborted which in the eyes of proper medical professionals is not fit to live or is dangerous for the mother. 2. No Autonomy to the pregnant women for Abortion The pregnant woman was not given the right to decide about abortion at her own free will. The reason for this was to ensure that no child -who could otherwise be born healthy and without any serious danger to the mother- be aborted. Had the right of abortion been given in the hands of women, it would have resulted in many unwanted abortions from the hands of women who could physically and mentally give proper birth but did not want a child. This step ensured that no foetus could be aborted simply because of the choice of the mother and without proper medical reasons behind it. 3. The ‘Quickening’ Principle The Act clearly codified the ‘quickening’ principle already prevailing. It stated that any abortion –even if for medical reasons cited above- must be done before the twenty-eight week of pregnancy. 15 A child is considered to be alive in the womb after the twenty-eighth week and abortion after this time would fall under the criminal law and will be punishable under law. The Human Fertilisation and Embryology Act 1990 amended this law16 a little and now this time period is twenty-four weeks instead of twenty-eight weeks but the general principle is laid down by the 1967 Act. 4. Restriction on Un-authorised Medical Treatment The Act also clearly states that any medical treatment for the purpose of abortion must be carried out at proper medical facilities which are registered with the government. For this purpose hospital, health care trusts and any other places accepted by the Secretary of Health are considered legal places for abortion. 17 Any non-authorised place which performs an abortion process will be subject to legal repercussions. This step also helps to ensure that no unborn child is aborted in the absence of proper reasons. Are the Protections Provided Sufficient? After going through the issues framed above, the question which strikes a mind is weather these protections provided to the Foetus sufficient or not? In order to answer this question we will first have to explore the legal status of a foetus as compared to a born human being. What is the Legal status of a Foetus? Common Law historically did not treat a foetus as a legal person. It is true that law did accept certain rights of the foetus as a potential human in making but it did not mean that it acquired all rights normally vested in a human being. A foetus only acquires such rights once it is born alive. 18 In Unites States, a foetus is considered to have more rights and pregnant women are subject to legal repercussion if they use drugs during pregnancies which are harmful for the child but even US law falls short of declaring a foetus a complete human being. When we look at the European Law in the regard we also find that a foetus is not considered a human being. All these laws give some importance to the rights of foetus but accept that those rights can not be given importance over the life and health of the mother. 19 The courts have also adapted the same stance and although the law provides protection of life to every human being but the courts have repeatedly refused to give this right to the unborn foetus. 20 Foetus Rights vis-à-vis foetus Status Now that we have had an understanding of the status of foetus in the eyes of law let us examine if the rights vested to foetus under the Abortion Act 1967 enough or not. In this regard following two points clarify the situation: Rights of mother to prevail over the rights of foetus A foetus is given all right to get born and even the say of mother is not taken into consideration; she is bound to give birth unless there is an emergency. But it is clearly visible that the life and health of the mother is given preference over the life and health of the foetus. It is not a violation of the human rights of foetus but merely a preference of the life of a person already born as compared to an unborn one. Foetus will be considered as a part of mother till a pre-defined time Foetus is considered as a part of mother until the twenty-forth week of pregnancy (previously twenty-eight) and after that it is considered as a human being. If we examine this clause we can see that again it is not meant to be against the right of foetus that it is considered as a part of mother’s body but merely a preference for the mother. In fact, the reality that a foetus over the age of twenty-four weeks is considered as a human and can not be aborted even if it may cause danger to mother is a big right vested in the foetus. Conclusion - the future of the Abortion Law in UK Much has changed in the legal arena since 1967. The laws have also evolved and now there is a widespread demand in the country to amend the existing laws on abortion as well. There are demands to provide the women excusive rights to decide weather she wants to have the child or not. There is much opposition of this idea from the opposite view holders as well. The Abortion Act 1967 provides a balanced approach where the rights of both mother and foetus are taken care of. Any changes to this law shall be with many deliberations and rights of neither mother nor foetus shall be compromised totally. Bibliography Aristotle, Politics, 1932 Burton v. Islington Health Authority [1993] QB 204 Critchlow, D, The politics of birth control in historical perspective, 1996 Legal definition of Abortion retrieved on March 24, 2010 from http://www.yourdictionary.com/law/abortion Malicious Shooting or Stabbing Act 1803 Medical definition of Abortion retrieved on March 24, 2010 from http://www.medterms.com/script/main/art.asp?articlekey=2091 The Abortion act 1967 The Human Fertilisation and Embryology Act 1990 The Human Life Review, Human Rights Foundation, 1975 The Infant Life (Preservation) Act 1929 The Offences against the Person Act 1828 The Offences against the Person Act 1837 The Offences against the Person Act 1861 R v Bourne [1938] 3 All ER 612 Taylor, I, Religion and life with Christianity and Islam, 2005 Vo v. France, No. 53924/00 Mcbride, D, Abortion in the United states: a reference handbook, 2008 Read More