Bodily Integrity and Abortion Part III: Consent to Pregnancy

Consent To Pregnancy

(Although this was originally intended to be a three-part series, I will be writing one more post to address Judith Jarvis Thompson’s famous violinist analogy)

“Consent to sex is not consent to pregnancy.”

If you’ve been challenged by the above statement, then I hope you’ll find this blog post helpful.  In it, I’ll discuss why I think consent is not actually a relevant concept in the specific case of pregnancy.

 1. Pregnancy is an outcome, not an action.

Put simply, you are able to consent to actions, but not to outcomes. For example, you may need cataract surgery, which carries a 0.7% risk of retinal detachment. If you give your consent for the surgery to be carried out (the action) and then develop a detached retina (the outcome), it is superfluous to insist that you did not give your consent to this outcome. You cannot sue the surgeon on the grounds that you did not consent to a retinal detachment. Your consent to the surgery indicated your acceptance of the known risks of that surgery. Likewise, consent to sex is not consent to pregnancy, but it is consent to an action where pregnancy is a possible outcome. In essence, you accepted the risk of pregnancy when you consented to place yourself in the situation where pregnancy was forseeable. This acceptance of risk applies equally to men and women, as is seen in the legal obligation of the father to support his offspring.

However, if an unfavourable outcome occurs, we do endeavour to correct that outcome. In the example of retinal detachment following cataract surgery, the patient would have the option of undergoing further treatment in order to correct the problem. So the suggestion could be made that, as laser surgery is to retinal detachment, so abortion is to pregnancy. When pregnancy occurs, it is corrected by undergoing an abortion.

In answer to this, I would say that in correcting the unfavourable outcome, we have an obligation to do so in a manner that results in a minimum of harm, and does not violate the rights of another. In the case of the patient with retinal detachment, they may have laser surgery, but they may not kidnap another person and remove their eyes to use for themselves (imagining that whole-eye transplants were possible). A less fantastical example would be that if I gambled (the action) and lost my money (the outcome), I may not resolve my debt by killing my debtor, no matter how much mental anguish or financial pressure I was under.

Taking responsibility for the outcomes we create by consenting to place ourselves in situations where there is risk of those outcomes, means resolving things in a way that minimises the adverse effects to other people, even if it means taking these effects onto ourselves to some degree. Therefore abortion is not an appropriate resolution of pregnancy, as the harm to the foetus is maximised rather than minimised, and its human rights are undoubtedly violated.

It’s worth noting that if pregnancy was not an interruptible process, consent would likely not even be worth discussing.  For example, we don’t talk about consent for the process of digestion, even though it follows an action that we are able to consent to (the consumption of food).  Also, as with any risk, steps can be taken to minimise that possibility of pregnancy.  Barrier methods, such as condoms or diaphragms, and avoiding sex during the woman’s fertile times, can be used in an effort to prevent conception.  However, as both sides of the abortion debate tend to agree, contraceptive methods are not 100% effective.  So the risk of pregnancy may decrease, but it is still present and still needs to be acknowledged as a possible outcome.

 

2. Requiring pregnancy to have ongoing consent redefines it as assault, with all the implications.

Pregnancy is the use of your body by another person. Unwanted pregnancy is the use of your body by another person without your consent. The normal term given to a situation where your body is used without your consent is assault; in the context of pregnancy, I will refer to it as pregnancy-assault.

Imagine now that we are talking about a man and a woman in a long-term, but rocky relationship. Even though the implication of a long-term relationship is that sex is mutually consensual, there are times when the woman does not wish to have sex. Consider the following situations:

  • The man requests sex and the woman says no. He persists and eventually forces her to have sex.
  • The woman has drunk too much alcohol and is unconscious on the bed. The man has sex with her before she regains consciousness.
  • The woman agrees to have sex and engages in foreplay, but loses consciousness before intercourse commences. The man continues, and has sex with her before she regains consciousness.
  • The woman has not lost consciousness, but is drunk to the point of incoherence. She does not resist when the man begins to have sex with her.

In which of these situations did assault take place? I hope you will agree with me in saying that assault took place in every situation. It should be clear that in a situation where consent is either withheld or unable to be given, any actions that proceed are non-consensual and are assault. Imagine again that any of the above situations are taking place, but you have the opportunity and the capacity to intervene. Should you? I would argue that you have an obligation to intervene; that to stand by would be morally untenable.

Now consider the following situations:

  • A woman is pregnant. She does not wish to be.
  • A woman is pregnant and unconscious. Her attitude towards the pregnancy is unknown.
  • A woman is pregnant and unconscious. Prior to falling unconscious, she had expressed her willingness to be pregnant.
  • A woman is pregnant and hospitalised after suffering an adverse reaction to medication. She is incoherent and does not appear to understand what is happening around her.

If pregnancy requires ongoing consent that may be withdrawn at any time, then a woman in any of the above situations is experiencing an assault. If a doctor has the opportunity and the capacity to intervene by performing an abortion, should he? The logical conclusion is that he should, however counter-intuitive this may seem.

Perhaps the idea of pregnancy as assault seems too extreme to be concerned about.  But this is exactly what Elaine McDonagh argues in her book (emphasis mine):

“Even in a medically normal pregnancy, the fetus massively intrudes on a woman’s body and expropriates her liberty. If a woman does not consent to this transformation and use of her body, the fetus’s imposition constitutes injuries sufficient to justify the use of deadly force to stop it. While it is not usual to think of pregnancy as an injury, that is exactly how the law already defines it when it is imposed on a woman without her consent. For example, when men or physicians expose women to the risk of pregnancy by means of rape or incompetent sterilization, and a pregnancy follows, the law clearly establishes that women have been seriously injured. The term the law uses for such a coerced pregnancy is wrongful pregnancy, and the law holds the perpetrators responsible for the injuries entailed by it. This book expands the concept of wrongful pregnancy to include what the fertilized ovum does to a woman when it makes her pregnant without her consent. It is the only entity that can make a woman pregnant, and when it does so without her consent, it imposes the  serious injuries of wrongful pregnancy even if the pregnancy in question is medically normal. . . . [T]o the extent that the law protects the fetus as human life, the law must hold the fetus accountable for what it does.”

(Quote taken from Beckworth & Thomas 2003)

I considered some arguments that dispute the comparison I have made between sexual assault and the condition of pregnancy, should ongoing consent be required.

It probably wouldn’t cause the woman any harm to remain pregnant until her consent is ascertained.

If this were true, the doctor is not under an obligation to immediately intervene.  However, if we accept this, we could also be argue that it probably wouldn’t cause the woman in the first set of scenarios any harm to let her partner have sex with her, and then ascertain her consent after the fact.  Since this is clearly unacceptable, it should also be unacceptable not to intervene in the case of a pregnancy-assault.

Aborting a wanted pregnancy would cause considerable trauma.

To be on the safe side and avoid this possibility, the doctor should not intervene.  But when we go back and consider this in the context of the first set of scenarios (and here we might add to them, and state that your intervention would result in considerable harm to the man – say he becomes extremely aggressive and rushes at you, requiring you to defend yourself and grievously injure him in the process) considerable trauma could also be caused to the woman in these cases, depending on the manner and outcome of the intervention.  Would this justify standing by and potentially allowing a rape to take place?  If not, then it would not justify standing by and potentially allowing a pregnancy-assault to take place.

An unwanted abortion would violate a woman’s bodily integrity.

Intervening in a potential rape would also likely involve violating the bodily integrity of the woman.  If it eventuated that the sex was actually consensual, you would have prevented her from doing with her body what she would have chosen, and therefore you have violated her bodily integrity.  If it was indeed rape, then the intervention was justified, but cessation of the act of rape could still have required violation of the woman’s bodily integrity, i.e. the need to touch her in order to prevent the assault.  If this is not a sufficient reason for not intervening in the potential rape, it is not a sufficient reason for not intervening in a potential pregnancy-assault.

Clearly, our intuition in this should be that we should certainly not perform abortions on unconscious pregnant women.  But if we are to construe pregnancy as assault, this seems an inescapable conclusion.  I hope, therefore, that you can see the problem with requiring ongoing consent to pregnancy.

 

To conclude, and to paraphrase my opening statement: “Consent to sex is consent to accept the risk of pregnancy”, or – even more specifically – “consent to sex acknowledges the possibility of pregnancy and accepts responsibility should it occur.”  It is not practical or relevant to require explicit consent to pregnancy.

 

I welcome feedback. If you have any comments or questions, whether you agree or disagree, I would be delighted to hear from you.

 

 

 

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My Letter to South Australian Politicians

As a brief hiatus from my bodily integrity series, I would like to share you with a letter that I will be sending to key people within the South Australian parliament.  I will keep you up to date on any responses I receive.

Dear South Australian politician

I am motivated to write to you by my deep compassion and concern for one of the most vulnerable populations in our society – the unborn. 20% of South Australian pregnancies end in abortion (1). This is hardly the epitome of “safe, legal and rare”. I urge you to consider the following proposals; to act to reduce the number of abortions occurring in our state and to support women who struggle with being pregnant under difficult circumstances.

1. That the South Australian legislation on abortion be amended to decrease the gestational limit on abortions to 20 weeks. In South Australia in 2011, 94 abortions took place beyond this point (1). The current gestational limit of 28 weeks is in place to protect those foetuses capable of being born alive. However, this does not reflect advances in medical care and technology, which can now preserve the life of the premature infant as early as 22 weeks gestation (2). A 2009 Swedish study found a survival rate to one year of 70% for infants born at 22-26 weeks gestation (3). The limit of 20 weeks is proposed to allow a margin of error for potential miscalculations of gestational age, which can have an inaccuracy of two weeks (4, 5, 6).

2. That the South Australian legislation on abortion be amended to remove the criteria of physical and mental abnormalities. That an abortion is allowed on these grounds only is discrimination against those with such handicaps, and relies upon an unknowable judgement on the quality of life that these foetuses would experience, were they allowed to be born. The latter is starkly illustrated by the fact that 95% of foetuses diagnosed prenatally with Down syndrome are aborted (7), despite the evidence that such individuals are able to lead happy and fulfilling lives (8). Furthermore, this has also failed to keep pace with advancements in medicine and technology, with interventions available for many congenital conditions, such as heart defects (9, 10) and spina bifida (11).

3. That legislation protecting infants born alive after abortion attempts is introduced, mandating that these infants receive the same level of medical care that would be given to a wanted infant born at the same gestational age. From 2001 to 2009, sixty-five infants who died in the neonatal period (within twenty-eight days post-birth) were born alive following an abortion, making up an average of 13.9% of all neonatal deaths (12-20). (Figures from 2010 onwards were not reported separately from other neonatal deaths.)

4. That a pregnancy support payment be introduced. This payment would be a small supplement to cover costs such as dietary supplements, doctor’s visits and time taken from work, and would be available to pregnant women until birth.

5. That a childbirth leave payment be introduced for women in paid employment who do not have access to maternity leave. This would apply from the 36th week of pregnancy until birth. It would be equivalent to the minimum wage, in line with the federal paid paternity leave scheme. This payment would be applicable regardless of the outcome of the pregnancy, or whether or not the mother intends that her child should be adopted. In the case where the infant is to be adopted, the payment should extend two weeks post-birth to compensate for ineligibility for the paid parental leave scheme.

Thank you very much for your time and consideration. If you feel that any of these issues are inappropriate for the state level, but would like to take them further, please discuss them with your federal counterparts. For further discussion, or if you share my concerns and would appreciate further input, I would be delighted to hear from you.

Sincerely Yours,
Elizabeth

 

Bodily Integrity and Abortion Part II: Sovereign Zone Argument

The Sovereign Zone Argument
Part 2 of my series on bodily integrity and abortion

This argument states that the boundaries of a person’s body form the boundaries of a ‘sovereign zone’, within which a person is free to take any action that they wish. For example, if a person decided to have an operation to split their tongue , the Sovereign Zone argument says that they have a right to have this done, as their tongue is within the sovereign zone of their body and is therefore theirs to do with as they please.

It’s easy to see how this applies to abortion. The unborn child, even though it is not a part of the pregnant woman’s body, is still within the pregnant woman’s body, and therefore encompassed by her sovereign zone. Thus – according to the argument – she has the right to do with the unborn child as she pleases.

I’d like to start with a few examples that show how our bodily integrity can be limited in a way that shows that the reach of the sovereign zone is not absolute, and that our bodies are not inviolable.

  1. Involuntary patients with a mental illness may be medicated against their will.
  2. Smoking is banned whilst driving with children.
  3. Recreational use of cocaine is illegal.
  4. Anorexic patients may be involuntarily hospitalised and treated.
  5. Female genital mutilation (FGM) is illegal, even with the consent of the prospective patient.

The important thing to think about with these examples is the reason why bodily integrity has been limited.  In all circumstances, it is for the protection of the individual, the protection of others, or both. To be specific:

1. The detainment and treatment of an individual with mental illness protects against self-harm and protects others against violent actions of that individual:

“because of the mental illness, the person requires treatment for the person’s own protection from harm (including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm”

Mental Health Legislation on Involuntary Treatment

South Australia Mental Health Act 2009

2. The smoking ban protects children from the harmful effects of the adult’s second-hand smoke.

3. The illegality of recreational drugs protects the individual from the harmful effects of the drugs.

4. Involuntary treatment protects the individual from the adverse health consequences of being severely underweight.

Consider how these limitations on bodily integrity shows that the sovereign zone can be breached with sufficient justification. Furthermore, consider the similarity between the goals of the limitations listed above and the goal of limiting bodily integrity in the case of abortion; primarily for the protection of the unborn child.

I’d like to give special attention to FGM, because I think this is the one that is most akin to abortion, in that most pro-choice arguments could also be used to argue in favour of allowing FGM. Firstly, I do need to say that I consider FGM to be a completely unnecessary and often horrific practice.  I firmly believe that it should be illegal, as it is in South Australia.  As I’ve stated, it is illegal even if the prospective patient has requested it. I want to stress that last part, to make it clear that we have a situation in which a woman may make an informed choice to have a procedure carried out on her own body, and yet have that choice denied. So why are women denied the opportunity to make this choice for themselves, even if that denial entails severe social and emotional consequences? It’s not medically necessary, this is true, but neither are numerous cosmetic surgeries.

Illegality of FGM

The (very valid) reasons for banning FGM are the same as the other examples; for the protection of the individual and the protection of others. The illegality of this procedure protects the woman from (a) being coerced into making a decision that she is not comfortable with, and (b) suffering the health consequences and risks resulting from FGM. It protects others, as the majority of FGM procedures are carried out on underage girls, and so a ban prevents them being subjected to such a procedure against their will (which would be a very real possibility if the law were changed to allow for FGM for consenting adults). It furthermore protects these women and girls by attempting to prevent the propagation of a sexually discriminate cultural ideal.

So once again, we see that bodily integrity can be legitimately limited, if the justification is sufficient. Therefore the Sovereign Zone argument is not sufficient grounds for abortion, provided that justification can be made for its limitation in this case. To parallel the examples given, the justification offered would be:

  1. For the protection of the individual from the harmful effects of abortion, from being coerced into making a decision, and from the risks of a medically unnecessary procedure.
  2. For the protection of the unborn child.
  3. To avoid propagating a societal discrimination against women and the inescapable biological fact that we bear children.

A little more on that last point: it is inarguable that men and women are biologically different. Any advances in equality need to recognise our differences and adjust our systems to account for them. As long as a woman has an ‘opt out’ option for pregnancy, there will be those with the perspective that concessions shouldn’t be made for pregnant mothers and mothers will young children – because ‘she didn’t need to be pregnant, she could have just got an abortion’. Respect for women and respect for the fact that we bear children and go through the process of pregnancy go hand in hand, and is only diminished by the thought that a pregnancy, once begun, is somehow optional.

Now to a more intuitive challenge to the Sovereign Zone argument. I’ve drawn from a few different sources for the following, but it is most clearly laid out here.

According to the Sovereign Zone argument, a pregnant woman has a right to do anything she pleases within the boundaries of her own body, even as this includes the embryo/foetus. Thus she has the right to abort the unborn child, even though it will result in their death. This may not sound unreasonable at first. But consider that the absolute nature of this argument also gives her the right to mutilate the unborn child. A commonly used example is that she takes thalidomide for morning sickness, knowing that it’s going to result in the deformation of the unborn child. A more direct idea is that she chooses to have the foetus’ arm removed, whilst leaving it alive. It sounds dreadful, but it is a logical conclusion of the Sovereign Zone argument.

Perhaps one could protest that the mutilation is wrong because it then affects the child once it is born. Therefore it is not that the act is wrong in itself, but it is instead wrong because of the impact on the born child. I would answer this objection in two ways:

  1. Consider the impact of a missing limb versus the impact of death. The child with a missing limb may miss out on some experiences in life (for a positive story of such an individual, go here), but the child killed before they were born can experience no life at all. I would argue that the non-living child has suffered the greater impact, and therefore this response to the Sovereign Argument cannot be dismissed on these grounds.
  2. Consider a situation in which a woman pregnant with a 39-week foetus takes the following course of action: she arranges for a number of chemicals to be injected into the amniotic fluid that will cause the foetus to be in extreme pain until, two or three days later, it eventually dies in utero. It distresses me to even write of such a thing, but the Sovereign Zone argument would permit this, even with a qualification that prohibited actions that would impact upon the born child.

It is clear that the Sovereign Zone argument permits abortion on-demand throughout the entire pregnancy. Many people feel uncomfortable with late-term abortions, or even medically unnecessary abortions, and yet the Sovereign Zone argument allows abortion at any time for any reason. The Sovereign Zone argument would also condone the woman who repeatedly and deliberately gets pregnant in order to abort (the reason why someone might do this is irrelevant, as the Sovereign Zone argument requires no justification for abortion). If you hold to the notion that bodily integrity is inviolable and absolute, and yet this scenario makes you uncomfortable, it may be that you realise that there are moral and ethical depths to abortion beyond the simplistic concept that a woman has a right to choose what to do with her own body.

To conclude, the Sovereign Zone argument fails because:

  1. Bodily integrity is not an absolute right and can be limited with the appropriate justifications.
  2. It permits actions that are morally reprehensible.


The next post will be on the Right to Refuse argument, which I personally consider the strongest pro-choice argument.