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

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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 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”.)