Although, abortion is not allowed
in many countries (like in Ireland), the higher class of the society always has
this right of abortion (No matter, whether it is legally or illegally). Recently,
I had the pleasure of attending a seminar on “Woman’s Right of Abortion” and
this is the topic of today. When I was in the seminar, there were some issues
grew in my mind which asked me to write something about it. The main issues I
found in the seminar are that the organisers did not know actually what they
were looking for, they did not give enough reason why there should be such
right and how they are going to persuade others to join them so that it become
a nationwide topic. In the course of this post, the issues in the seminar and
my further research will be discussed with the evaluation of current abortion
law of the UK.
First start with the history of
abortion- without going in too much details I would just mention some basic
information regarding history of abortion. Abortion has been going on since the
ancient time though most of the religious texts condemn it. In most of the
countries abortion was illegal to increase the population of the community or
the state. However, this law was ineffective as majority of the cases it was
not possible to gather sufficient evidence to convict someone and illegal
abortion continued. In the 20th century many countries started to
legalise abortion on the basis of one or more of these reasons- protecting life
of the woman, health of the woman, rape, fatal malformation, mental health and social
and economic reasons. However, almost 30% countries do not require any of these
requirements; there abortion can be carried out just on request of the woman.
But, there can be further requirements in some countries. In the UK the request
have to be signed by two practitioners, though there are many incidents of
misusing this requirement. Even if the UK is part of European Union, the law of
the union is completely different than that is here. Under EU law abortion is
allowed on request for the first three months of pregnancy and after this
period it is only allowed in certain circumstances which can be decided
considering the age of the person.
Usually, there are two basis of
setting a limitation period for carrying out abortion. One is called
‘quickening’, when the movements of the foetus can be realised by the woman.
This was the case before the revolution in the medical science when it was
basically possible to determine when the foetus can be recognised as human
being. Today most of the countries of the world use the ‘alive rule’ which
basically determines when a foetus should be considered as a ‘reasonable human
being’. The period used to be 28 weeks in the United Kingdom under the Abortion
Act 1967 but with the further advance of the medical science the period has
been reduced to 24 weeks by the Human Fertilisation and Embryology Act 1990.
Recently, there is a debate going on to reduce the period up to 16 weeks
because under intensive medical treatment a baby born in this age could survive.
However, the percentage of survival is not quite lower than 50%, which may not
success in a democratic argument as the majority will rule eventually. Then we
need to revisit the chapter of Magna Carta to Universal Convention on Human
Rights and different philosophical questions of human life and rights.
The recent case of Savita
Halappanavar in Ireland is a critical example for the necessity of abortion
right. In this case, S was pregnant and her pregnancy started to develop
different health problem. She wanted to terminate her pregnancy but she was
refused by the practitioner or hospital as it is now allowed in Ireland. Her
health problem started to deteriorate. She suffered from a miscarriage and that
eventually took her life. This is a really tragic incident and shows us the
significance of abortion right. It also reflects the limitation of Irish law
with it giving chance to review both Irish law and the law in England so that
this incident never repeats.
The wave of that tragic incident
country wide discussion has been held and our seminar was one of thousands. There
were some interesting arguments for having unfettered right of abortion.
Firstly, everybody should have right on their own body and that should apply to
all the women either pregnant or not. Secondly, there should be right for all
the people to do whatever they want to do in their body. Thirdly, protection
social life and redemption from social stigmatisation; fourthly, competing
right of a woman to protect her life and health and finally the social impact
will be on the born baby.
The first three arguments can be
accommodated into one particular right of a human being, and it is ‘right to
private life’[1]. Bruggenmann v Germany[2]
is an important case regarding the private life of mother (article 8). The ECJ ruled that restriction on the
termination of an unwanted pregnancy does not constitute an interference with
the private life of the mother. However, the ECJ held in A v Ireland[3]that
the restriction on abortion right on abortion on the ground of health or
well-being interferes with the mother’s right to private life. But the court
found a justification for this prohibition by saying that the prohibition on
abortion was to protect the moral values of the majority of the Irish
population and it was legitimate (as they also can go abroad for abortion).
Nevertheless, in the other cases, Article 8 does not allow saying that
pregnancy and its termination are solely a matter of the private life of the
mother.[4]
It also involves other rights with it; the right to private life of the mother
against right to life of the unborn baby or it can be competing right to life
of both mother and the unborn baby.
Now the question is who should
get priority in this uncomprehend competition of rights. When it comes to the
competing right of private life of the mother and right to life of the unborn,
some interesting questions comes in play, like- when an unborn should be
recognised as human being because if not human, then there is no issue of
foetus having human rights and no social stigmatisation on the mother.
There is no medically recognised
precise time limit when a foetus should be considered as human as it would be
impractical to say that a foetus got right to life now which he did not have
just a moment ago. But, classically, it used to be that when a foetus can live
without any body connection with the mother (outside the womb) would be
considered as human being (at least that’s how the legislation goes).[5] Again, living outside womb is determined by
different things (like- availability medical facilities, competence of mother,
race and gender of the foetus).[6]
With the development of medical science (as I mentioned earlier) many foetus
can survive outside their mother’s womb since when they are 16 weeks. Although,
many people believe, it should be the possible minimum time to recognise the
foetus as human being, it is a matter of controversy. The recent survey by
Ipsos shows that 53% people believe that a woman should not have to continue
with her pregnancy if she wants an abortion.[7]
However, the survey does not show anything whether they were asked about any
time limit until when abortion should be allowed. It did acknowledge the
agreement was higher in previous years and in 2009 when it was asked whether to
increase the time limit of 24 weeks and the response was a bit of astonishment
for the people who were expecting most of the participants to vote for increase
as only 22% people agreed. But there is certainly an agreement among most of
the people that ‘a time limit is necessary for abortion right’. Finally,
regarding the competing right to life of mother and the unborn, the right of
mother should always get priory over the right to life of the foetus.
There can be other consideration
for having abortion right, further impact on the born baby. The mother has to
be competent enough to be a parent. It would be easier to explain this point by
citing two cases. In the case of B (A
Minor) (Wardship: Sterilisation) [8]
a girl, aged 17, was in a ward of court. She was placed under the care
of council as she was mentally handicap. However, she was becoming sexually
aware so the council applied to the court for a sterilisation leave because she
could not understand that intercourse cause childbirth or the principle of
contraception, could not cope with normal childbirth and could not function as
a mother and the court allowed a sterilisation permission. The HL later applied
this principle and allowed sterilisation of a 36 year old woman who was
mentally handicap. [9]
From the earlier discussions, it
can be said that the right of abortion is necessary and in some cases crucial
for woman. However, the unfettered
discretion of abortion would not only undermine the moral values of the society
but it would defeat other fundamental rights associated with it. So, it is
important to have limitation on this right to protect those competing rights.
[1]
European Convention on Human Rights, Article 8.
[2]
(1981) 3 EHRR 244, Application No. 6959/75.
[3]
[2011] 3 FCR 244. (application no. 25579/05)
[4] C
Simmonds, ‘European Court of Human Rights: Art.8 – restriction on abortion’
[2011] IFL 79.
[5] N
Cox, ‘Causation, responsibility and foetal personhood’ [2000] 51 NILQ 579-596.
[6] http://www.bbc.co.uk/ethics/abortion/child/alive_1.shtml
(if you are interested, you can read the article of bbc regarding foetus’s
right to life.
[7] http://www.ipsos-mori.com/researchpublications/researcharchive/2854/Public-Attitudes-towards-Abortion.aspx
[8] B (A Minor) (Wardship: Sterilisation), Re [1987]
2 All ER 206.
[9] F v West Berkshire HA [1990] 2 AC 1.
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