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”.)


Pro-Choice/Pro-Abortion Comments & My Responses (Part I)

Below are comments I came across on this story: (linked from here).  I wanted to write a response to them here to help equip others who might come across similar sentiments.  Also as an outlet for my frustration regarding seeing these same unthinking statements come up again and again from the pro-choice/pro-abortion side.

“I have a penis and testicles, therefore my opinion is irrelevant. I wish all men would come to this realization.”
“How about when men can get pregnant and grow a child, THEN you can have a say about it.”
He’s a man and he will never understand. No one will ever understand until they feel what it’s like to be pregnant.”

In effect, we’ve just disregarded the opinion of half of the human race.  Seems like a big call.  I would say that firstly, you do not have to undergo something or even have the capacity to undergo something in order to have a valid opinion on it.  If we’re to limit what we can and cannot have opinions on only to things we can personally experience, then each person’s acceptable points of view become repressively narrow and unhelpful.
Secondly, moral issues relate to the protection of society as a whole, and therefore the whole of society has a right to be concerned with them.  The defence of vulnerable populations should not be limited to those who have had first-hand experience.  I have never experienced child-abuse, never known a child-abuser and – to the best of my knowledge – never known an abused child.  And yet I am able to hold an opinion on child-abuse. That opinion is, of course, that it is very wrong, and I suspect that that is the reason why few would argue with my right to hold such an opinion – it’s easier to accept abstract opinions when you agree with them and don’t need to be looking for a reason to invalidate them.
Thirdly, this argument completely disregards any experience men may have had with abortion.  They may have experienced the loss of what was to them a wanted pregnancy.  Just as we would validate a man’s grief over the loss of an unborn child through miscarriage, even though it didn’t happen to him personally, so can we also validate a man’s grief  over an abortion carried out against his will.  Then there are men who have seen a girlfriend, partner or wife suffer through the emotional and physical repercussions of abortion, and their protectiveness of them drives their opinion on the matter.
Of course, I am a woman with a uterus – which has even had a foetus inside it at various times – so it seems that I get a free pass to have an opinion.

unless you have had the experiences of getting an unexpected pregnancy, your opinion is irrelevant” 

Whoa, okay. There goes my free pass. How disappointing.
This statement takes the first lot of arguments I looked at, gets in the car with them, drives down the street, turns left onto the highway and ends up three states over.  Let’s have a play with this sort of sentiment in other situations, and see what we come up with:
“If you haven’t been tortured, your opinion on torture is irrelevant.”
“If you haven’t been an alcoholic, your opinion on alcoholism is irrelevant.”
“If you haven’t been a drug user, your opinion on drug legalisation is irrelevant.”
“If you haven’t been raped, your opinion on the punishment of rapists is irrelevant.”
Once again, to base the validity of our opinions on whether or not we have first-hand experience of the issue in questions is not only stupidly restrictive, it is also impractical.  We need to be able to form judgments on many issues in order to create the laws that keep society functioning and provide protection for those unable to speak for themselves (the unborn, infants, children, profoundly disabled etc.), and it is simply not possible for everyone involved in these processes to have had firsthand experience.  Furthermore, taking this attitude doesn’t actually resolve the argument.  There are women who have experienced the situation of an unwanted pregnancy who have carried the pregnancy to term and consider themselves blessed, and also those who have had an abortion and regretted it ever since.  So regardless of whether or not you apply this criteria, you will still end up with a broad range of differing opinions and an unresolved issue.
But if we’re going to stick with this kind of attitude, how about this one:
“I was once a foetus, therefore my opinion on foetal rights is relevant.”

“The best part of this whole argument and fight, is that most people who are pro-life, are male”
Anyone notice how the ones who have a problem with abortions are pretty much all males?”

Actually, men and women in American share very similar views on abortion, according to Gallup:
American Abortion Views

This is further explored here.  Most interestingly is that in various surveys (not the one above), more women than men favour abortion being illegal in all circumstances.  And by far the greatest percentage of men or women come down in the ‘legal only in a few circumstances’ camp; far from an overwhelming majority cry for abortion on demand.
In my exposure to the pro-life movement, I have come across more women than men.  Admittedly, this is my personal experience and therefore may not extrapolate across the board, but to list just a few examples:
Abby Johnson
Kelsey Hazzard
Rebecca Kiessling
Hannah Rose Allen
The girls at New Wave Feminists

” And ten years after that [her abortion], I gave birth to my son at the time that was best for me and for him.”
“Just telling your unborn fetus to come back later is probably the best advice I could give to women with an unwanted pregnancy.”

I’ve read again and again that one of the reasons that women give for abortion is that, “I’m not ready to be a mother.  I want to be a mother when the time is right.”  Some follow this up with remarks like the first one above, in that they had subsequent children at the ‘right time’ and feel that they have been able to fully parent them.  These sort of remarks baffle me slightly, because I’m not sure if the woman involved is deliberately deluding herself to protect her conscience, or if she really doesn’t think it through and realise that the foetus you abort and the foetus you bring to birth and parent are not the same child.  Being the best mother in the world to your living children makes no difference whatsoever to the life that was ended by abortion.  For that child, there was no best time, there was no right time.  There was only one time, and that was when the woman was pregnant with them.  Once that chance has passed, that child will never have another one.

“If you believe that a fetus’s right to life trumps a woman’s right to control her own body, you believe that everyone has the right to requisition organs from other people in order to maintain their life as well.”
“You are not legally bound to donate a kidney, blood, or anything else to a dying relative, even your own child. In the same respect, a woman cannot be legally bound to carrying an unwanted pregnancy”

One of the scary things about the first statement above is that someone further down in the comments seemed to find it a sound argument.  But there are several problems with it;
Firstly and foremostly it demonstrates a fundamental misunderstanding of what pro-lifers are arguing for.  It’s not the right to have life, regardless of the circumstances and the effect on others.  What the unborn child should have, as should we all, is the right not to be unjustly killed.  Once you realise this, you can see how their whole argument is going nowhere.  Because when we consider that the individual in need of an organ transplant is limited to this right also, we can see that they are no longer justified in removing your organ to sustain their own life.  However, it is also certain that you are not justified in sneaking into their hospital room and putting a pillow over their face.
Which leads onto the next point, as secondly, there is a strong distinction to be made between an act of omission which causes a death, and an act of commission which causes a death.  In the case of the organ receipient-to-be, it is an act of omission which would lead to their death (not giving them your organ).  In every case of abortion, it is an act of commission, a deliberate intervention, that leads to the death of the foetus.
Thirdly, an organ donation involves the introduction of a pathological state, permanent or otherwise, in the donor.  Pregnancy, on the other hand, is a physiological state for which the body is designed and equipped.
Fourthly, this argument ignores the responsibility that a pregnant woman (in the majority of cases) has for creating the foetus’ current state of dependence; a responsibility that is not present for a stranger in need of an organ donation.  A closer analogy would be that the someone had injured another person, causing them to need an organ donation, and then refuses to donate their own organ to assist and, in doing so, condemns this person to death.

I started discussing bodily autonomy here as well, but then I realised that to do it justice, I really need to devote an entire blog post to it.  So I will postpone that discussion for now.

Part II coming soon…

*Edited to add links and fix typos

The Embryo/Foetus as a Living Human Person


Whether or not we regard the unborn child as a fully human person can completely change the way that we perceive abortion.  Consider these excerpts from the Universal Declaration of Human Rights (Preamble and Article 3) (emphasis added):

“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”

“Everyone has the right to life, liberty and security of person.” (

The moment we acknowledge the embryo or foetus as a fully fledged member of the human race, we also acknowledge that abortion is a severe and unjust infringement on the humans rights of this being.  That is why the biological and philosophical status of the unborn child is pivotal to the abortion debate, and why those on both sides must be able to justify fully their position on this point in order to justify their position on abortion.

The Embryo/Foetus is Human

An unborn child has:

  • Human parents
  • Human cells
  • Human DNA
  • Progressively distinct human physiology

It is difficult to see how the inclusion of the embryo/foetus as a member of the human race can even come into question.  One might ask: what would the alternative be?

The Embryo/Foetus is Alive

There are certain biological properties that help us to define what is alive and what is not.  A living organism displays a variety of these properties


The embryo/foetus has a structure that shows visible order; the cells act together in a coordinated fashion to give regular and predictable results; they show distinct and ordered patterns of gene expression.


The embryo/foetus maintains boundaries between itself and the outside environment, distinguishing itself from it and enabling its recognition as a distinct entity.

Energy Processing

The mitochondria of embryonic and foetal cells use aerobic and anaerobic respiration to generate ATP – the energy molecule needed for biological processes.

Environmental Response

According to environmental input, embryonic cells can alter gene expression, alter intracellular signalling, undergo metabolic stress and undergo apoptosis.  Once the appropriate systems have been developed, the foetus can react to sound and noxious (painful) stimuli.

Growth and development

In a suitable environment, the embryo/foetus goes through undeniable growth and development from the very moment of conception.


The embryo or foetus is obviously not capable of sexual reproduction, but an mind-boggling number of cell divisions take place as  a single cell replicates and divides to become trillions of cells.

The Embryo/Foetus is a Person

Is the embryo or foetus human?  Yes.  It is alive?  Unquestionably.  But then, so is my appendix.  And yet it’s not an issue if I choose to have it removed.  So what is the difference between an appendix and a embryo or foetus?

The most obvious difference is that, left to its natural course without interference, an appendix will not manifest as a newborn infant in nine months time.  The acknowledgement of this potential allows us to distinguish the embryo or foetus from other organised structures within the human body; from its conception it is unique.  However, it is important not to wholly define the embryo or foetus by its potential, as this is a denial of its intrinsic and current properties (of which more will be said).

The majority of those who accept or advocate abortion argue that there is a distinction to be drawn between the embryo or foetus and the newborn infant*.  Once the child is born and, in some cases, has drawn its first breath, then and only then can it be acknowledged as a life to be valued and protected (some are a little more generous and allow that the foetus should be protected from a certain time-point onwards; perhaps when it could be viably born, or perhaps when it can theoretically feel pain).  These points of view rest upon the idea that until a certain transition has occurred or a certain stage of development is reached, the embryo or foetus is not a person, and hence not entitled to the rights and protection that all reasonable human beings ought to extend to other persons.

What defines a person?  The straight answer is that there is no consensus.  The difficulty with this is that, though it is unmeasurable, we cannot allow personhood to be subjective.  If personhood is in the eye of the beholder, what right have we to criticise the mother who wraps her newborn child in a plastic bag and leaves it in a dumpster?  Instead we recognise that there can be a legitimate moral imperative to restrict the actions of individuals, regardless of their personal opinion.  Thus it is also true that we cannot allow our treatment of the unborn child to rest on what individual people do or do not believe.

Generally speaking, thoughts on the topic tend to fall into one of two ways of thinking: a person is defined by their capabilities (functionalism), or a person is defined by their nature (essentialism).  To put it simply, functionalism says, “I think and feel, therefore I am person”, whereas essentialism says, “I am a person, therefore I think and feel.”

To some extent, the functionalist approach is irrational, being that we do not confer or withhold personhood from any born person on the basis of their capabilities – it is enough that they have been born as human offspring to human parents.  An example of a functionalist definition is to say that unless an individual is capable of rational thought, they are not a person.  Obviously this excludes the unborn child.   The dangers inherent in such an approach to defining personhood, and hence how an individual is to be treated, should be obvious:

  • Any capability-based definition of personhood that excludes the embryo or foetus will inevitably exclude other distinct groups, such as newborn infants, the mentally disabled, those on life support, etc.
  • Denial of the personhood of the embryo or foetus on the basis of capability leads to unpalatable, and yet logical conclusions, such as the diminishment of the moral status of the newborn and the acceptability of infanticide.**

On the opposing hand, essentialism argues that personhood is possessed by virtue of simply being a human being, without regard to capabilities.   This is an inclusive approach, acknowledging the human race as a whole without distinction or prejudice.  An important point to note when considering this is to realise that although the physical structure of the embryo or foetus changes as it undergoes development and maturation, the nature of the unborn child does not.   The nature the embryo or foetus possesses is the same nature it will possess as an infant, a child, an adolescent and an adult.  It is this nature, present from the first moment of existence, that entitles the embryo or foetus to be acknowledged as a person.

* Please note that there are who those advocate that no such distinction should be drawn, and that the life of the unborn child and the newborn is equally disposable.

** The beginnings of which are already seen in countries such as the Netherlands, where euthanasia of infants is permissable by law.


It is an honest, and yet hard to understand, abortion supporter who can acknowledge the true nature of what is occurring in the “termination of a pregnancy” and “removal of the contents of the uterus”.  My hope is that you will take the time to consider what it means to deny admittance to the human race, and therefore the most basic of human rights, to the smallest and most vulnerable among us – what it means when we define what it is to be human according to our own prerogative.


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