Abortion & Forced Organ Donation

Forced Organ Donation & Abortion

Why I don’t need to agree with forced organ donation in order to believe that abortion is wrong.

The Argument

Forcing a woman to remain pregnant by denying her an abortion is like forcing her to donate all her bodily organs to sustaining another life. Unless you also believe that it’s okay in general to force people to donate their organs to sustain the lives of others, you hold a hypocritical and illogical position and your opinion can be dismissed. If you don’t believe that it’s okay in general to force people to donate their organs to sustain the lives of others, then you have no grounds for then thinking that it’s okay to force the pregnant woman to donate hers to sustain the life of the embryo/foetus.

The Problems with this Argument

1. Firstly, I’m going to take issue with pregnancy being described as organ or tissue donation, when it is nothing of the kind.

  • The pregnant woman does not donate her uterus to her unborn child. The uterus is designed to house the unborn child, and to say that this means that it is donated to the unborn child is akin to saying that a women’s vagina is donated to a man during sexual intercourse, or that a nursing mother’s breasts are donated to her breastfeeding child. An organ used as it was intended to be used by another human being does not constitute a donation.
  • Similar to the above, the pregnant woman does not make a tissue donation of her endometrial lining (which would otherwise be discarded during menstruation) to the unborn child, as this is the intended use of the endometrium.
  • The pregnant woman does not donate her blood to the unborn child. Unlike an actual donation of blood, where the blood is removed from the donor and placed into the recipient, no blood is removed from the mother and no blood is placed into the embryo. Bear with me, because it does get somewhat technical in order to demonstrate this;- Until three weeks after conception, the embryo receives oxygen and nutrients via the trophoblast, which is the precursor to the placenta and forms the outer layer around the embryo. Picture the trophoblast as an eggshell, and and the embryo as the egg yolk. The trophoblast is in contact with lacunae, which are cavities within the endometrium that are filled with maternal blood. Material diffuses from the lacunae through the trophoblast and to the embryo.

    – At two weeks after conception, the embryonic circulatory system begins to form. By three weeks after conception, embryonic blood is moving through capillaries (very small blood vessels) within the chorionic villi, which can be pictured as stalks sprouting from the layers surrounding the embryo. These villi project into the lacunae, and material diffuses from the blood in the lacunae into the embryonic blood vessels, where it is circulated via the embryonic cardiovascular system, which – by the end of the third week – includes a beating heart.

    – The pregnant woman does not donate her body to the unborn child. Her body systems do work together to provide nutrition and shelter for the unborn child, but to claim that this is akin to organ or tissue donation makes no more sense than claiming that my use of my body to provide nutrition and shelter to my three born children is akin to organ or tissue donation.

2. It doesn’t take into account the relative rights at stake. By this I am saying that it fails to recognise the difference between not acting to save a life (non-organ donation) and acting to end a life (abortion). It is important to realise here that my stance on abortion is based primarily on the concept that the unborn child, as a human being, deserves the same human rights as the rest of us.

The key right here is the right not to be arbitrarily killed. Other rights of the unborn child are also violated by abortion, but this one is the most outstanding. However, refusing to donate an organ does not result in the arbitrary killing of the ill individual. We have a right not to be killed; we do not have a right not to die. The most relevant right for the individual requiring an organ transplant is the right to health, but this only covers a right to ethical treatment, and so does not cover forcing another person to undergo a intervention in order to acquire treatment.  Therefore no rights of the would-be organ recipient are violated by a refusal to donate.

3. It minimises and trivialises the bodily autonomy of the unborn child while elevating the bodily autonomy of born human beings, including the pregnant women. Let me illustrate what I mean;

  • A person dying of kidney disease MAY NOT violate the bodily autonomy of another in order to save their own life, even though death may considered one of the most drastic of consequences.
  • A pregnant woman MAY violate the bodily autonomy of her unborn child in the most extreme manner in order to avoid the continuation of her state of pregnancy.

So, on one hand we say that bodily autonomy is so important that we may not violate it even to save our own lives. On other hand, we say that bodily autonomy is so unimportant that we can violate it drastically in order to not be pregnant. The only way to escape this illogical conclusion is to argue that the unborn child does not deserve human rights – and I’ve yet to see one convincing argument on this presented to me.

4. It fails to mirror the state of pregnancy in its analogy of forced organ donation. Even if we were to ignore that pregnancy is not organ/tissue donation (see point 1) and pretend instead that it is in some way, it still does not resemble the organ/tissue donation that takes place between born human beings. For example, if I am pregnant, than the embryo or foetus is already using my uterus; the ‘donation’ has already taken place. The only way to stop the foetus using my uterus is to forcibly remove them, at the cost of their life. Likewise, after a kidney donation has taken place, the only to stop a donor recipient from using my kidney is to force them to undergo a surgical procedure and reclaim my kidney from their body. Regardless of how my kidney ended up in their body to begin with – forced, voluntary or as a foreseeable consequence of my own actions – most people would see that this remedy for reclaiming my bodily autonomy is not sufficiently justifiable.

5. It fails to recognise that that granting a right does not grant every remedy to that right. I have a right to bodily autonomy, but I may not pursue any avenue that I feel is appropriate to exercise that right. To give an example, if I overheard a plan to kidnap me and forcibly remove my kidney in order to give it to the child of the main conspirator, and I know that the only way to stop this from taking place was to kill the unknowing and essentially innocent child, am I justified in doing so? I am not, even if this is the only remedy available that will uphold my right to bodily autonomy.

6. It doesn’t differentiate between an active violation and a denial of intervention (e.g. operation to remove donor organ versus denial of abortion procedure). A doctor needs to meet a high bar to treat a patient without consent (example here), but a much lower bar to refuse to treat a patient (example here). An example in my own personal experience has been an elderly and demented female patient with a cancerous lesion in her gastrointestinal system. Should the surgical team discover spread of the cancer or other complications, they are well within their rights to refuse to perform surgery on this lady. However, they cannot decide of their own accord to perform surgery on her; not without the consent of the relevant family members.


The Challenge of this Argument

It was put to me that it is immoral to refuse to save a life when it is within your power to do so. I am inclined to agree somewhat with this, so how can I then defend myself from being called hypocritical when I fail to advocate for forced organ donation, but advocate for so-called forced pregnancy?

The answer is that it doesn’t matter if I think refusing to donate an organ is immoral. For the above reasons listed, this argument is as relevant to pregnancy as suggesting that because I think lying is immoral, but don’t advocate for legislation banning it, I don’t have a right to advocate for the banning of abortion.


Conclusion

Consideration of the unique situation of pregnancy, awareness of the affected rights of all individuals involved in both pregnancy and organ donation and recognition of the very significant differences between organ donation and pregnancy have led me to the conclusion that this argument, although seemingly relevant and powerful on the surface, can be refuted when it is thoroughly explored


I found the following links useful:

Debunking the Pro-Choice Argument, Part VI

Standford Students for Life: the Kidney Donation Argument

Information on embryological development came from ‘The Developing Human: Clinically Orientated Embryology, 9th Edition’ Moore et al. 2013

Late-Term Abortion: Are They Only For Medical Reasons?

Late-Term Abortions

As a brief interlude from my series on abortion and legislation, I want to take the time to talk about late-term abortions and the reasons why they occur. In multiple online discussions, I’ve encountered individuals who are firmly convinced that late-term abortions only occur for medical reasons, i.e. the health of the mother or the foetus. I strongly suspect that this may be the result of the film ‘After Tiller’, which attempts to portray the four remaining late-term abortionists in America as sympathetically as possible. There are also those who insist that late-term abortions are in fact early inductions where the life of the foetus is preserved if at all possible. This post will be a sharing of the various resources, articles and interviews that I’ve come across that clearly show that neither of these are the case. Late-term abortions are intended to end the life of the unborn child and are carried for any number of reasons that have nothing to do with health/medical indications.  I will add to the list as I get opportunity.

NB: the definition of ‘late-term’ varies, but most sources seem to place abortions after 16-20 weeks gestation in the late-term category.

1. An interview with late-term abortionist Dr Susan Robinson, in which she describes how she will abort healthy foetuses late in pregnancy, and also how a lethal injection is given to the foetus as part of the procedure to ensure death.

2. Another interview with Dr Robinson, where it’s very clear that many of the women who see her are coming for a late-term abortion because they didn’t know they were pregnant or because their circumstances changed (be prepared for some appalling stereotyping of the pro-life movement, if you choose to read through the entire interview).

3. A report on the ‘After Tiller’ documentary and the abortionists involved, the relevant quote is a bit buried, so I’ve reproduced it here:
“The hands of Susan Robinson covering her face as she ponders another young woman’s story and whether as a physician of late-term abortions, she says yes or no.
“Who am I to say, ‘No, that’s not a good enough story’? What if you’re just not a good storyteller? The point is,” Robinson says, “she has made this decision. If I’m going to turn down a patient, it’s because it’s not safe and I can’t take care of her.“” (emphasis mine).

4. A combined 4.8% of abortions in the U.S.A are performed at 16+ weeks; that’s 3.6% between 16 and 20 weeks, and 1.2% at 21+ weeks. That’s 38,160 and 12,720 abortions in 2011 respectively.

5. In Victoria, Australia, perinatal deaths at 20+ weeks gestation are recorded in mortality reports (I’ve included page numbers, as this is a lengthy document, and also reproduced the relevant tables).
In 2010:
• 191 foetuses were aborted because of maternal psychosocial conditions (i.e. reasons of mental health or social circumstances). None survived to birth (p159).
• 184 were aborted between 20 and 27 weeks gestation (p164).
• 7 were aborted between 28 and 31 weeks gestation (p164).
• In the same time period, 28 foetuses were aborted at 20+ for maternal conditions, including 6 at 32 to 36 weeks and 3 at 37+ weeks (p164). None survived to birth (p162).

In 2011:
• 183 foetuses were aborted because of maternal psychosocial conditions, again with none surviving to birth (p159).
• 172 of these abortions occurred between 20 and 27 weeks gestation (p162).
• 10 occurred between 28 and 31 weeks gestation (p162).
• 1 occurred at 37+ weeks gestation (full-term) (p162).
• In the same time period, 18 foetuses were aborted for maternal conditions, including 5 at 32 to 36 weeks and 6 at 37+ weeks (p162). None survived to birth (p160).

As you can see, this data gives lie to the idea that late-term abortion is only for health conditions, and that the aim of a late-term abortion is to deliver a live baby whenever possible.

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6. Although this article refers specifically to partial-birth abortions (or intact dilation and extraction method), it quotes several abortionists on the reasons why women have late-term abortions.

7. An article on reasons why women present for second trimester (14 to 26 weeks) abortions, citing the main reasons as logistical, not suspecting pregnancy and difficulty in making the decision to abort.

8. Abby Johnson, former clinic director at Planned Parenthood and now pro-life advocate states that the women sent for abortions at 24+ weeks did not have medical reasons for doing so.

9. Another interview with Dr Robinson. I’ve reproduced the relevant quote;

“It’s about these poor desperate women who find out they’re pregnant and they’re already three quarters of the way through pregnancy and a pregnancy will wreck their life. What are they supposed to do? Those are the people we take care of. We take care of people whom pregnancy would wreck their life or who have a baby that’s hugely damaged to the point where the parents who wanted this pregnancy think that perpetrating a life on this kid is unfair.”

10. An undercover video of a young woman at 26 weeks pregnant seeing Dr LeRoy Carhart for an abortion. The relevant moment is at 4:25. It also clearly shows that there is no intention for the foetus to be born alive.

11. An interview with late-term abortionist Willie Parker. He’s never explicit, but reading between the lines it’s fairly clear that he carried out late-term abortions for non-medical reasons:

12. An article about a Los Angeles clinic performing abortions up to 26 weeks. A couple of the relevant quotes;

“It is a private clinic, run by a former general practitioner, that does about 150 abortions a week. It accepts patients 26 weeks into their pregnancies. Asked the obvious question, the administrator sighs and says, “We have kind of gotten out of the habit of asking why they waited so long.””

“The realities that Walshe sees every day, she admits, can be unsettling. “These women know they are pregnant, but not until the 16th or 17th week, when the fetus is kicking and bothering them, do they say, ‘Oh, I have to deal with this,’ ” she says. “It’s not that these women are bad, or they’re wrong. They’re just poor. They don’t lead organized, routine lives.””

13. The Clinic Quotes websites shares a multitude of quotes on abortion from many and varied sources. This page is specific to quotes on late-term abortions.

14. An article on why women seek abortions at 20+ weeks. Medical reasons are only brought up in describing the demographic of the sample; 30% had a substance abuse or mental health issue – although this was associated by the author with delay rather than reasons for abortion.
• “ 43% of women reported that not realizing they were pregnant delayed them in seeking abortion care.”
• “37% of women reported that the process of deciding whether to have an abortion slowed them down.”
• “One in five participants said that disagreement with the man involved in the pregnancy over their decision to have an abortion slowed them down.”
• “Some women had trouble finding a place to go … 38% of these women reported delay for this reason.”
• “Almost two-thirds of the women seeking later abortion … said they were delayed because they were raising money for travel, the procedure and other costs.”
• “Women seeking later abortions were twice as likely as women seeking first-trimester abortions to report delays because of difficulties securing public or private insurance coverage for the abortion.”
(Full-text here if you have access)

15. An article from Pro-Life Obs/Gyns on late-term abortion and medical necessity.

16. An article on Ron Fitzsimmons (then executive director of the National Coalition of Abortion Providers) comments about having lied regarding medical necessity and late-term abortions.

17. A Slate article in the aftermath of the Kermit Gosnell charges talks about elective late-term abortion, amongst other things.

18. An article by late-term abortionist, Lisa Harris. In case you cannot access the full-text, I’ve reproduced the relevant quote below;

“In the US, the known risk factors associated with presenting for second trimester abortion include: adolescence, drug and alcohol addiction, poverty, difficulty obtaining funding for the abortion, and African-American race. Delays in obtaining second trimester abortion come when a woman does not realise she is pregnant (perhaps a surrogate for poor health or lack of education), has logistical delays, experiences denial about the pregnancy, is uncertain about the decision to have an abortion, or has a change in life circumstances or relationships that makes a previously desired pregnancy undesired.”

And because it really stood out to me, here is another comment she made on the difference between the 23-week old foetus she had just aborted, and the 23-week old premature infant who she observed being treated in the neonatal unit. Note how she considers only extrinsic factors in deciding the legitimacy of dismembering one child while striving to save the other;

“Yes, I understand that the vital difference between the fetus I aborted that day in clinic, and the one in the NICU was, crucially, its location inside or outside of the woman’s body, and most importantly, her hopes and wishes for that fetus/baby.”

19. An Australian couple abort their 28-week unborn child in due to a condition called ectrodactyly, which had only been discovered to affect the left hand and is not a lethal condition.  From the father:
“”It felt very inhumane, to be honest,” Frank said. “We were being told that our only option was to give birth to a baby that we did not wish to give birth to at all.We felt we have been forgotten and abandoned through the political and judicial uncertainty of the abortion laws”.”

20. Another Australian couple aborted their 32-week unborn child in 2000, due to suspected dwarfism, another non-lethal condition.  The mother was reported to be suicidal and the abortion carried out for this reason, but it highlights the fact that this late-term abortion was intended to kill the unborn child.  There was absolutely no intention that the child should live, even though its chance of survival would have been extremely high.  The prenatal diagnosis of dwarfism was never confirmed.

21. A study by Maria Stopes International UK, “Late Abortion: A Research Study of Women Undergoing Abortion Between 19 and 24 Weeks Gestation” found that:
“For the vast majority of women taking part in this study, the signs and symptoms of pregnancy were not recognised until an advanced stage, making late abortion an inevitability rather than a conscious choice on their part.”
and
“A small minority of women taking part were aware of the pregnancy at an early stage but were either in denial, or subsequently faced a significant change in their circumstances that forced them to re-evaluate their pregnancy.”

22. Descriptions of second and third trimester abortions from Warren Hern’s website.  A three to four day procedure is hardly what is necessary for a woman whose life is endangered by her pregnancy.

Back Alley Abortions Part I: Legislating Morality

Legislating Morality

The most prominent argument against criminalising abortion is that such an act would force women to go to the ‘back alley butcher’ – an unlicensed, unskilled abortionist who is likely to leave them injured, if not dead. It can be summed up thusly; criminalising abortion will hurt women. And there are many people, both pro-choice and pro-life, who are concerned about this, and that is a credit to their sense of compassion. As for myself, as someone who cares deeply about justice and protection of the vulnerable – born or unborn – this concerning scenario is not something that I would ever like to see happen. In the following series, I will try to address this and other concerns about criminalising abortion. In this first post, I will be looking at the idea of legislating morality.

Should we legislate morality?

According to certain polls, almost half of Americans describe themselves as pro-life. However, in a NARAL commissioned poll, 45.5% of respondents who were against abortion personally nonetheless responded that they didn’t believe a woman should be prevented from making that decision for herself – and, by implication, legally accessing it.  These poll results suggest that a fair percentage of self-described pro-life Americans would be accepting of abortion as a personal choice, along with the 23.2% who responded that abortion is morally acceptable. Only 24.7% responded that they believed abortion was morally wrong and should be illegal.

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But the above poll asked very specific questions and lacked a middle ground. The second option, which the 45.5% of respondents selected, is not a middle ground on legislation, since it effectively states that legislative restrictions should not be in place and didn’t leave an option for partial restriction. The next option was that abortion should be illegal, which many would perceive as too much an all-or-nothing hardline approach. In polls that include a middle ground, such as legal under a few circumstances, or illegal in most circumstances, result show that up to 72% of respondents want some restrictions on abortion.

(It is also interesting to note how results changed according to whether the middle ground question used the word ‘legal’ or ‘illegal’ – with far more respondents likely to support restrictions if it was phrased as ‘few legal’ rather than ‘most illegal’.)

When asked if abortion should have increased restrictions or not be permitted, 50% of respondents answered in the affirmative. When the questions grow more specific and included the option of abortion only available in cases of rape, incest or endangerment of the mother’s life, 52% were in favour of either restricting to only these circumstances or complete restriction. Polls on restrictions according to the length of pregnancy are also revealing; while only 31% of respondents believe that it should be illegal in the first three months, this number grows to 64% for the second three months and 80% for the final three months.

(All the above poll results can be found here.)

So, many people have already answered the question on whether or not we should legislate morality, and it seems that the majority agree that we should – those who believe there should be no restrictions on abortion remain a minority, ranging from 19-27% in various polls. And once you agree that any restriction should be placed upon abortion, you have acknowledged that it is appropriate to legislate upon this issue, even if it is a moral one. If your ideology causes you to disagree with this, you have to accept that such a position will allow abortion for any reason at any point in the pregnancy, even if the woman is 38 weeks pregnant and has merely changed her mind on a whim (and perhaps you are reconciled to this).

Going back to the NARAL poll, what it does show is that there are those who are ‘personally pro-life’ but are not willing to absolutely restrict availability of abortion to others. In other words, they may find an action morally wrong, but are not willing to express their support for legislation upon that moral issue.

Is this a legitimate point of view? In one aspect it is fair enough. A state or country where all individual moral autonomy is suspended would hardly be ideal, and it’s fairly safe to assume that few would choose to live under such conditions. But when we consider that morality is about what is right or wrong, it’s clear to see that we already legislate upon it. Examples would be rape and child abuse. Of course, not all activities with moral aspects are legislated. Minor lies and adultery are examples of this. So what’s the difference? Perhaps one way to consider the applicability of legislation is to look at the impact of the activity, i.e. what is the justification for the limitation of moral choice? Child abuse and rape very clearly have a large impact on the victim. So I suggest that the questions to ask are, who is affected by the action in question, and how are they affected.

Who is affected by abortion?

  • the unborn child
  • the pregnant woman
  • the health system
  • the people who I guess you could call ‘abortion candidates’, such as individuals with Down Syndrome and consequently their families

How are they affected?

  • the unborn child is killed
  • the pregnant woman undergoes a medical procedure with associated risks; furthermore academic research (examples here, here, here and here) and individual anecdotes (such as Voices of Regret: Stories of Loss and Hope) show that there is a real potential for there to be future or ongoing negative effects as a result.
    – the health system: abortion is covered by public health insurance in Australia, meaning that there is a financial cost to the public health system. Potential negative consequences of abortion would lead to increased utilisation of the healthcare system and increase the healthcare burden.
    – Discrimination towards individuals with disability and their family due to their existence having become a ‘choice’ – either prenatally or postnatally (examples here and here).

Is the impact strong enough to justify legislation?

Is death not a strong impact? I don’t believe that there are any other situations where a human being is killed by deliberate intervention that is not legislated upon. Unless you don’t acknowledge the unborn child as a living human being – and given the serious consequences of this line of thinking, you need to be able to justify why – it is clear that the impact of abortion on the unborn child alone should be sufficient to justify legislation. The fact that abortion also has the potential to injure or cause long-term issues for the pregnant woman is also strong justification.

To be succinct, unless you believe that abortion has no more impact upon the persons involved (including the unborn) than an appendectomy, you have to consider that there is grounds for legislative control.

Conclusion

My thoughts are that once we accept that morality can be and is already legislated upon, and when we acknowledge the impact of abortion, then we can come to the conclusion that it is legitimate and justifiable to legislate on abortion. In many places we have already done so. In South Australia abortion is limited after 28 weeks of pregnancy, i.e. the state of South Australia has determined that the women should not have the moral autonomy to abort their unborn child once they have passed this point. If this is accepted, the question is not whether it is legitimate for legislation on abortion to exist at all, but rather what should be the extent of such legislation.

Bodily Integrity and Abortion Part IV: The Right To Refuse (Violinist Analogy)

The Right to Refuse

This argument is grounded in the idea that you have the right to refuse to let your body be used by others. It thus stems also from bodily integrity, but unlike the Sovereign Zone argument, it does not suggest that you should be free to do with your body whatever you please. Rather, it suggests that other people are not free to do with your body whatever they please; it is an act of defence rather than one of offence. In terms of pregnancy, my understanding is that the argument proceeds along the lines that the embryo or foetus is using the pregnant woman’s body, and she has the right to refuse to let it do so. This right of refusal is exercised through abortion, where the intended outcome is the freeing of the woman’s body from the unwanted usage, and the death of the embryo or foetus is a side-effect.

The most well-known work written on the Right to Refuse is by Judith Jarvis Thompson, in her essay ‘A Defense of Abortion’, where she created the famous violinist analogy. I have reproduced the analogy below:

“I propose that we grant that the fetus is a person from the moment of conception. How does the [pro-life] argument go from here? Something like this. Every person has a right to life. So the fetus has a right to life. No doubt the mother has a right to decide what shall happen in and to her body. But surely a person’s right to life is stronger than the mother’s right to decide what happens in and to her body. So the fetus may not be killed; an abortion may not be performed.

It sounds plausible. But imagine this. You wake up in the morning and find yourself in bed with a famous unconscious violinist. He has a fatal kidney ailment, and the Society of Music Lovers has found that you alone have the right blood type to help. They have therefore kidnapped you, and the violinist’s circulatory system was plugged into yours, so your kidneys can be used to extract poisons from his blood. The director of the hospital tells you, “Look, we’re sorry the Society of Music Lovers did this to you – we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? What if the director says, “Tough luck, but you’ve got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. A person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous, which suggests that something is wrong with that plausible-sounding argument I mentioned a moment ago.”

This analogy has been argued against on several different points, which I’ve summed up below:

  • In the majority of cases, the pregnant woman has consented to action that placed the unborn child in its present state of dependence, and therefore has a responsibility to provide for its needs.
  • The unborn child has a direct relationship with the pregnant woman, and she therefore has a responsibility to provide for its needs, as it is expected that parents provide for their children.
  • Unplugging from the violinist is a misrepresentation of abortion, which involves active killing of the unborn child, not merely passive withdrawal of care*.
  • The analogy misrepresents the majority of pregnancies, which do not have as great a physical impact on the life of the woman as being confined to bed for nine months.

(I’ve encountered these arguments in a variety of readings, but they are discussed by Clinton Wilcox in his blog and again at Secular Pro-Life Perspectives.  Another critique can be found at Stand To Reason.)

* I will make a quick note on this argument. This concession might be made that medical abortions are analogous to unplugging the violinist, as the process affects only the mother’s body (separation of the uterine lining – and thus placenta and embryo/foetus – from the uterus and then contraction of the uterus to expel the embryo/foetus) and does not directly affect the unborn child. However, in order to make it truly analogous, the violinist scenario would have to be changed to acknowledge that a medical abortion places the unborn child into an environment in which they are not physiologically designed to survive. An analogous outcome would therefore have the violinist being shot into space, or submerged under water upon disconnection.

These arguments can be found in various forms around the internet. But I would like to take another approach; one which takes in the notions of conflicting human rights and justifiable violation of bodily integrity, and attempts to generate a basic underlying principle whereby we can understand the acceptability of disconnecting from the violinist without – by extension – conceding to the acceptability of abortion. When I discussed human rights in conflict, I showed the legitimacy of limiting some human rights in order to preserve others. In my post on the Sovereign Zone argument, I pointed that our bodily integrity can be legally violated for the protection of ourselves AND the protection of other people. These are the two points that I would draw on in the following discussion. In summary:

  • Human rights can be limited to protect the rights of others.
  • Bodily integrity can be limited to protect ourselves and others.

It might sound like I’ve got the abortion argument sewn up there. However, Thompson presents a strongly intuitive case with her violinist analogy. Would I personally require that someone remain connected to the violinist? I would admire someone who did, but I don’t think – at this point – that I could require someone to stay connected to the violinist. So how can I require a pregnant woman to stay ‘connected’ to the embryo or foetus against her will?

This is where, based upon the two points that I’ve outlined above, I would like to propose a redefinition of the right to refuse. Thusly;

You have a right to refuse the use of your body by other people.

becomes

You have a right to refuse the use of your body for the treatment of other people.

This hinges on two things:

  • Any ‘right to treatment’ or ‘right to health’ can be limited.
  • The usage by the unborn child falls under the category of provision of physiological needs.

To the former, the right to treatment can certainly be limited. In the United States of American, the right to treatment applies only to treatment of an emergency medical conditions, as defined by federal law. In South Australia and Western Australia, the provision of in vitro fertilisation is limited to heterosexual couples – thus excluding singles and homosexual couples. In Australia and New Zealand, liver transplants are not offered to individuals with ongoing alcohol or other substance abuse.

The ‘right to health’ allows that an individual has a right to access to ‘timely and appropriate health care’. Acceptability of the health care is a key component, and rises from the concept of respect for medical ethics. As can be seen in the case of McFall v. Shrimp, it was deemed unacceptable for the bodily integrity of Shrimp to be violated in order to facilitate the treatment of McFall. Put another way, McFall’s right to health could not compel medical treatment that was ethically unacceptable. Similarly, we do not have compulsory organ donations or blood donations. This is because we recognise that treatment of a pathological condition, i.e. prevention of a natural death, is not sufficient to justify violation of bodily integrity.

So why does this not apply to the unborn child? After all, the pregnant woman’s bodily integrity is violated in order for the continuation of the life of the unborn child. I believe that the key to differentiating between pregnancy and the violinist analogy is to recognise that the continued pregnancy does not provide treatment to the child, but rather allows provision of its physiological needs.

We recognise in law the importance of requiring parents to supply for the physiological needs of their children. If parents or caregivers fail to supply the basic needs of the nutrition and shelter to their children (as much as it is within their capability), they are guilty of neglect under the South Australian Children’s Protection Act 1993.

www.legislation.sa.gov.auLZCACHILDRENS PROTECTION ACT 19932006.01.311993.93.PDF - Google Chrome 2072014 102757 PM.bmp

This is not negated even if this provision requires the caregiver to use their body against their will, e.g. if they need to use their body against their will in order to prepare food or construct shelter; or if it infringes upon their right to liberty, e.g. not being able to leave children at home alone or having to interrupt activities that they find enjoyable.

Once born at the appropriate gestational age, these needs are provided to the infant via feeding with breast milk or formula, and environmental control of temperature and shelter. Prior to birth, the physiological delivery of these is through the pregnant woman’s circulation via the placenta. I emphasis ‘physiological’ because I want to make it very clear that supply of these needs does not serve to correct a pathological state in the unborn child, i.e. while the provision of such is essential for health, it does not constitute treatment in and of itself. Hence, while we can uphold the principle of bodily integrity in denying the use of a person’s body to save the dying violinist, we can limit it in the use of a pregnant woman’s body to sustain her unborn child.

As a side-note, it is not only the relationship between a caregiver and a child that makes the provision of basic needs a duty. If a neighbour’s child somehow wandered into my house and became trapped there with me due to a freak snowstorm (not a usual occurrence in Australia), I would certainly then be under a moral obligation to provide for their basic needs, and to refrain from ejecting them from my house into an environment within which they could not survive. I would further speculate that either of these actions would leave me open to being charged with criminally negligent manslaughter. (For a more in-depth discussion of this idea, a .pdf of the De Facto Guardian argument can be downloaded here.)

It’s important to see that pregnancy is not a medical condition that requires treatment, but a physiological condition that is monitored and optimised. If treatment is required during pregnancy, it is because pathology has occurred, such as pregnancy-induced-hypertension. It is akin to way that digestion is not a medical condition that requires treatment, but disorders of digestion are.

In conclusion, I have iterated the ways in which the violinist scenario fails to be analogous, and have introduced a new principle that seeks to balance the rights of the pregnant woman with the rights of the unborn child, while allowing for the intuitive conclusion of allowing disconnection from the violinist.

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.

 

 

 

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.

Bodily Integrity and Abortion Part I: Human Rights in Conflict

Bodily Integrity
(This is the first of three posts in a series on this topic)

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”
The Universal Declaration of Human Rights

Practically everyone has heard the phrase, ‘My body, my choice.’ This is a catch-phrase for the bodily rights argument for abortion. But what does that actually mean? And how can pro-life activists have any foundation for telling women what they can and cannot do with their own bodies?

There are two common versions of the bodily rights argument.  There is the ‘Right to Refuse’ argument, and the ‘Sovereign Zone’ argument. But first, I’d like to talk more generally about human rights, and the conflict that we see arising when we consider the abortion debate. It will be the focus of this post, whereas the Right to Refuse and the Sovereign Zone arguments will be addressed in subsequent posts.

In order to recognise that there exists a conflict of rights, we first have to recognise that the unborn child is an entity worthy of having such rights. In favour of this, please consider the following points:

  • (Thank you to Josh Brahm for introducing me to the following argument) I imagine that most people arguing from a bodily autonomy standpoint would agree that all of us, or least those already born, are entitled to human rights. Furthermore, that we are each entitled to these rights in equal measure. It follows, therefore, that whatever quality we have that supports this entitlement is something that we must each have in an equal measure. This means that it cannot be a capacity-based quality, since we all have differing levels of capabilities. Thus, to bestow human rights equally, without subjective judgement, there must be an intrinsic quality that qualifies us to receive them. What is it that we all posses equally without regard to what we are capable of? The answer is that we are all human; we all possess in common our humanity. What does the unborn child also possess, regardless of stage of development? Humanity; it is a human from the moment of conception – human parents, human DNA, self-directed, growing etc. As a human being, the human embryo or foetus should be entitled to human rights.

From the address by the Secretary-General of the United Nations at the opening of the World Conference on Human Rights in 1993:

“Human rights, viewed at the universal level, bring us face-to-face with the most challenging dialectical conflict ever: between “identity” and “otherness”, between the “myself” and “others”. They teach us in a direct straightforward manner that we are at the same time identical and different.

Thus the human rights that we proclaim and seek to safeguard can be brought about only if we transcend ourselves, only if we make a conscious effort to find our common essence beyond our apparent divisions, our temporary differences, our ideological and cultural barriers.

In sum, what I mean to say, with all solemnity, is that the human rights we are about to discuss here at Vienna are not the lowest common denominator among all nations, but rather what I should like to describe as the “irreducible human element”, in other words, the quintessential values through which we affirm together that we are a single human community!”

  • Consider a foetus at 23 weeks gestation, and an infant born prematurely at 23 weeks gestation. The former is legally allowed to be killed. The latter is protected by law from intentional killing. Given that the only difference between them is their location (in utero versus ex utero), and that as an entity they are inherently the same, how can we then say that there is any intrinsic property or quality that entitles one to human rights whilst depriving the other? I would say that we cannot, and that both are equally entitled to human rights (if you disagree, I would be very interested to hear your thoughts on why). To take it further, having said that the 23 week old foetus is entitled to human rights, and with the knowledge that human development in utero is a continuum from conception to birth, how can we deny the unborn child at 20 weeks human rights? At 8 weeks? At 4 days? The only way to do this is to move to a capability-based requirement for human rights, and the problem with this is addressed above, and also in one of my earlier posts.

So now we can consider how the human rights of the unborn child come into conflict with the human rights of the pregnant woman. The pertinent human right of the unborn child is fairly obvious:

“Everyone has the right to life, liberty and security of person”
The Universal Declaration of Human Rights

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
International Covenant on Civil and Political Rights 1966

The relevant right of the pregnant woman:
The right to “security of person” is often used as the basis for the right to bodily integrity, but different countries have elaborated upon this differently, often through case law. In Australia, it was recognised in Department of Health & Community Services v JWB & SMB (“Marion’s Case”) 1992:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body”

The argument from bodily integrity is that the pregnant woman has a right to decide what to do with her own body, even that means terminating the physiological support necessary for the continuation of the life of her unborn child; an action which clearly violates the unborn child’s right to life. So there are two rights in conflict. How is this conflict to be resolved? There are two opposing viewpoints:

  1. The right of the pregnant woman to bodily integrity outweighs the right of the unborn child to life.
  2. The right of the unborn child to life outweighs the right of the woman to bodily integrity.

It may seem unnecessary to have stated the viewpoints like this, but I wanted it to be clear that we are talking about which human right takes precedence over the other. Let me now introduce the term, ‘absolute right’. This is a right that is not subject to limitations. A non-absolute right, on the other hand, is one which can be limited according to certain parameters. The right to bodily integrity is not recognised as an absolute human right (I won’t give examples here, as I’m planning to talk more about it when I discuss the Sovereign Zone argument. Suffice for now to say that this is the case). The right to life is also not an absolute right. However, it is a non-derogable right, which means that it cannot be suspended even in a state of emergency. Other non-derogable rights are:

  • freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent
  • freedom from slavery and servitude
  • freedom from imprisonment for inability to fulfil a contractual obligation
  • prohibition against the retrospective operation of criminal laws
  • right to recognition before the law
  • freedom of thought, conscience and religion

All of these, except for the right to life and the right to freedom of thought, conscience and religion, are also absolute rights. Note that the right to bodily integrity, or security of person, is not listed here. This highlights one method of resolving a conflict of human rights, which is to consider the ‘higher ranking’ right (as determined by its classification as an absolute or non-derogable right) as taking precedence over the lower ranking right. By this method, the right to life would take precedence over the right to bodily integrity. As a general example, a person carrying an infectious disease may be quarantined against their will in order to protect people they may otherwise come into contact with and endanger. This is a conflict between the infected person’s right to liberty and other’s right to life, where the right to life takes precedence.

There are two more perspectives that can be taken into account when considering a conflict of rights. One is to consider the magnitude of sacrifice that would result from the deprivation of either right involved, and the other is to consider the broader societal implications. The latter is an acceptable approach in Australian law, as shown by the goals that are determined to be legitimate for the purposes of imposing limitations on human rights, including preservation of public safety, public order and the rights and freedoms of others

From this we can see that the right to bodily integrity could be legitimately limited to order to (1) preserve the right to life of the embryo/foetus, and (2) in the interests of preserving the safety of a sub-section of society, i.e. the unborn. This doesn’t actually answer the question of which right ought to be limited in this particular conflict (because you can make similar statements about limiting the right to life), but it does give legitimacy to the idea of limiting the right to bodily integrity.

To look at the magnitude of sacrifice is to take a more intuitive perspective. It’s to ask; which party makes the greater sacrifice if their right is violated? In the case of the abortion, the foetus makes the sacrifice of its life. One could suggest that there is no greater sacrifice than this. This is not to minimise the sacrifice of the pregnant women if her right to bodily integrity is violated; not only is there the physical burden of the pregnancy, but there are also social and emotional aspects that should be considered. For example, the main reasons women give for having an abortion are:

  • Having a child would interfere with education
  • Having a child would interfere with employment
  • Having a child would impair the ability to care for other children
  • Could not afford a child
  • Did not want to be a single mother
  • Relationship difficulties
  • Already had enough children
  • Not ready to have a child

So it is clear to see that there would likely be sacrifices on the part of the pregnant woman were she to be made to forgo an abortion and bear her child. There are also the physical risks entailed in the birthing process. Adoption may negate many of these sacrifices, but nonetheless may come with its own difficulties and emotional struggles.

A useful way to consider the magnitude of sacrifice approach is to consider how the respective sacrifices (the life of the foetus versus the varied sacrifices of the pregnant woman) would be considered if the situation in question was a conflict of rights between a mother and her infant child. There is little question that few would consider the sacrifices that the mother has to make in order to sustain her child sufficient reason to end the life of that child. Thus I would suggest that this is also the case with the embryo/foetus, as I have argued that it holds equal human rights to the hypothetical infant and should therefore be treated equally in resolution of this conflict.

So what I’ve covered in this post could be summed up as the following:
1. The unborn child is entitled to human rights by virtue of its humanity, including the right to life.
2. The right to life can legitimately take precedence over the right to bodily integrity.
3. Therefore abortion could legitimately be a violation of the unborn child’s right to life without sufficient justification.

A final note: I quoted the International Covenant on Civil and Political Rights (1966) above: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The argument could be made that the unborn child is not arbitrarily deprived of their life through abortion, because the decision to abort is not made on a whim, but is instead a carefully thought-through and agonised over decision. Furthermore, it is a procedure carried out under the auspices of laws created as a result of non-arbitrary processes.

I will point out that this still would not prevent the act itself from being arbitrary, i.e. based upon the personal opinion or will of the individual; a decision made not because it is the right/correct thing to do, but because it is the desired thing to do. For comparison, take any reason for depriving the unborn child of life, and try to apply it to a situation where we talking about a newborn infant (again). For example, one of the reasons given for abortion is that the pregnant woman is unable to afford a child. Would we consider this a valid and justifiable reason for her to take the life of her newborn? Or would we say that the newborn in this case was arbitrarily deprived of their right to life? Remember that I have equated the unborn child and the newborn as both human and having equal right to life. That being the case, any process that results in the newborn being deprived of life that would be considered arbitrary should also be considered arbitrary when applied to the unborn child.

It is worth noting that both the Australian Capital Territory and Victoria have, in their charter of rights, made specific mention of the fact that these rights do not apply to the unborn child. It’s telling that they felt this necessary; that special mention had to be made in order to exclude the unborn child. It is suggestive that the logical course would otherwise be to apply these rights to all humans, born or unborn.

My next two posts will look specifically at the Sovereign Zone argument and the Right to Refuse argument. If you have any questions, disagreements, refutations, suggestions etc., please feel very welcome to add them to the comments.

** Further quotes to support the entitlement of the unborn to human rights **

“WHEREAS the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”
Declaration of the Rights of The Child
Adopted by UN General Assembly Resolution 1386 (XIV) of 10 December 1959

“Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
International Covenant on Civil and Political Rights
Adopted by the General Assembly of the United Nations on 19 December 1966

“I will maintain the utmost respect for human life, from the time of its conception, even under threat, I will not use my medical knowledge contrary to the laws of humanity”
Declaration of Geneva, 3 months before the 1948 Universal Declaration of Human Rights
(now states only ‘I will maintain the utmost respect for human life”.)