We are pleased to welcome this cross-post from the Human Rights in Ireland blog of Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013. Ruth is Senior Lecturer in Law and Director of the Centre for Law, Ethics and Society at Keele University. She spoke at the final day of the Committee’s hearings on the government’s proposed abortion legislation. Ruth also presented at the CCJHR Reforming Abortion Law: Comparative Perspectives conference at UCC in March 2013.
The proposed legislation is welcome for its recognition of a public obligation to implement an existing constitutional right to life-saving abortion. The state is under a duty to enforce existing constitutional rights, and failure to act is a clear breach of that duty. The movement away from absolutist protection of foetal life is welcome in a context which requires the balancing of public interests in protecting foetal life and in protecting women’s lives. But the proposed legislation does not do enough to address certain material considerations for this legal balancing act. I will focus this submission on 4 key points in relation to the definition of the unborn, the significance of risks justifying a termination of pregnancy, the limits on the right to conscientious objection, and the inappropriateness of criminalization.
Unborn – Head 1
Head 1 suggests that the unborn shall be defined to mean “following implantation until such time as it has completely proceeded in a living state from the body of the woman”. The reference to implantation as the beginning point for defining unborn life is justified by reference to the Supreme Court decision in Roche v Roche, which addressed whether stored embryos were unborns for the purposes of Article 40 3 3. With respect, the legal and ethical arguments for choosing the point of implantation as the significant moment for legal protection have not been adequately addressed. Given past failures to interrogate the assumed wrongness of abortion and given the particular factual context of Roche v Roche, it is open to the Legislature to consider more fully the criteria by which the ‘unborn’ should be defined in this legislation.
There are strong ethical arguments for choosing sentience as an alternative rationale for the protection of unborn life (Steinbock, 2011). Sentience is the capacity to feel pain or pleasure and is regarded by many moral theorists as the characteristic of living things which imposes obligations on others. Trees may be living things which are biologically valuable, but they do not have the capacity to be harmed in the same way that sentient beings do and so are not owed harm-reducing duties. A recent review of the evidence on foetal awareness by the Royal College of Obstetricians and Gynaecologists (2010) came to the view that 24 weeks gestation was the earliest moment at which sentience was possible, and that the foetus may not be sentient or aware at all during pregnancy given the effect of the uterine environment. If protection of the unborn is about the protection of human life then sentience is arguably the best candidate for the key feature of human life that make it intrinsically worthy of legal protection.
Obviously there are candidates for justifying the protection of unborn life before sentience, the main contenders being the biological or human species argument, and future/potential personhood argument. But these are not strong enough to justify the kind of full legal recognition which the legislation assumes. One version of the human species argument would protect unborn human life from conception, because it is precious as God-given life. While individual people should be free to let this view inform their moral decisions, it cannot be a view which informs the law in a pluralist society of many faiths and none. Another version of the human species argument is the biological individuation view, that there is something precious about the embryo as an individual member of the human species. The problem with this position is that it does not tell us what it is about the human species that makes harm to a human wrong. If another species has capacities to think, to feel, to act, or to live, is it unworthy of protection because it is not human?
Probably the best argument for legal recognition of the ‘unborn’ from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future. If this is accepted as the justification for the reference to implantation, it should be noted that this does not apply to fetuses with lethal genetic abnormalities. They do not have a future as persons, and so should be excluded from the legal definition of ‘unborn’ in the legislation. A second important aspect of this argument is that it rests on the potential to become a person, not on actual personhood. Potential personhood is arguably best regarded as giving the unborn some moral value because of what it will become in the future. This potentiality may be ethically significant, but it is not the same as the moral status that comes from the actual ability to feel pain or pleasure. Nor is it the same as the higher moral status which comes with personhood and the capacities for rationality and communication. As Thomson (1971) has argued the person’s interest in bodily and moral integrity may justify limitations on our duties to sentient beings. This is because part of what makes life valuable is the person’s ability to reflect on her life over time and make her own moral choices.
Conclusion: The following categories provide a better ethical rationale for the protection of unborn human life than the assumed significance of implantation.
- Pre-sentient foetal life has moral value rather than moral status. It should be taken into account in moral decision-making, but it does not impose harm-reducing duties on others.
- Sentient foetal life has moral status and may impose a duty not to be harmed on others.
- Self-aware personhood is a higher moral status than sentient life and may limit the duties owed to sentient life in important ways.
The unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible”
The unborn should be defined not to mean those foetuses which have lethal abnormalities and will not have a future independent life.
Risk of loss of life justifying a termination of pregnancy – Heads 2-4
Heads 2-4 provide for the kinds of risk to a woman’s life which will legally justify a termination of pregnancy. Here I would like to focus on the narrowness of the risk to life ground for abortion. This ground has been drawn very narrowly in part because it has been assumed that Article 40 3 3 requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus
As Irish equality scholars, Baker, Lynch, Cantillon and Walsh have argued, equality does not mean sameness. Rather treating entities equally requires the accommodation of their material and vital differences. Even if one accepts the contested view that the foetus ought to be legally protected as if it was a person with rights and responsibilities, that in itself does not determine how a conflict between the life of the foetus and life of the pregnant woman should be resolved. Vindicating the life of the unborn with due regard to the equal right to life of the mother should entail a full evaluation of scope of the unborn’s interests vis a vis those of the pregnant woman. To state the issue concisely, women are conscious, sentient beings with moral views and responsibilities to others, when foetues are not. Foetuses have value as bearers of biological life and as future persons, but this is not the same kind of value as that of a breathing, feeling, thinking woman. The current legal test treats women and fetuses as if they are the same, and in doing so, it devalues the significance of each form of life.
The legal test should be:“It is not an offence to carry out a medical procedure when there there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity.”
If the Oireachtas is not willing to adopt this recommendation, the minimum alternative is to remove the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness. This distinction is based on a particularly problematic view of women as morally untrustworthy, and does not address adequately the duty not to harm women’s lives.
Conscientious objection – Head 12
In principle the inclusion of a conscientious objection clause is defensible, subject to 2 conditions. It must be applied to individuals rather than organisations and only in circumstances where alternative provision is readily available. If respecting human life includes respecting the personal choices which give life meaning (Dworkin, 1992), then healthcare practitioners may avoid performing healthcare which infringes their moral values. This is an interest which inheres in the individual as the moral agent of her own life, not in an institution such as a hospital which has a corporate personality. As the Explanatory Notes acknowledge, conscientious objection is not an absolute interest, and is limited by the need to prevent harm to others, pregnant women in this instance. Moreover, healthcare practitioners have a duty of care to pregnant women, which includes promotion of their health and well-being. Conscientious objection to the provision of healthcare is only defensible therefore in circumstances where it would not entail damage to women’s interests in health and well-being. Delays in accessing healthcare could damage women’s health and well-being because a woman is left living with the physical and mental stresses of unwanted pregnancy for longer, and because later terminations are riskier than earlier ones. In circumstances where a healthcare practitioner cannot arrange alternative provision without undue delay, their right to conscientious objection may be limited by the duty to prevent harm and promote health and well-being. In practice therefore, the wording of Head 12 does not give enough weight to the harm-reducing limits on the right to conscientious objection.
Secondly, the phrase “as per current medical ethics” should be removed. Medical ethics usually refers to philosophical inquiry into the ethically right courses of action in medicine. There is usually a range of ethically defensible courses of action in a given area of medicine and so a reference to ‘medical ethics’ in this sense raises more questions than it solves. If “current medical ethics” is meant to refer to the current ethical guidelines adopted by the Medical Council, then this should not be included in a statutory provision. It is unnecessary, and may cause confusion about the relevant legal standard should the Council Guidelines change.
Further, I would ask the Committee to note that this recognition of healthcare practitioners’ consciences is inconsistent with the lack of legal recognition to date of pregnant women’s consciences. If conscientious objection to the provision of abortion is legally acceptable then so is a ‘conscientious objection’ to the sustenance of an embryo/foetus within one’s body. If a woman’s conscience tells her that terminating a pregnancy is the best moral resolution of the various issues which may arise in a given pregnancy, then that conscience also deserves respect and legal accommodation.
Offence – Head 19
The criminalisation of women’s decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction to vindicate the life of the unborn as far as practicable. Criminalisation does not achieve the objective of protecting foetal life and it makes the mental and physical experience of unwanted pregnancy worse. The Legislature has other options under Article 40 3 3 and it does not, as the Explanatory Notes suggest, have to criminalise those abortions which fall outside the tests in Heads 2-4. The Legislature could regulate the terms under which women access abortion in the Irish health service without punishing those women who fall outside those terms. It could vindicate unborn life by investing in pregnancy-related care and research into miscarriage. In choosing to punish women rather than to adopt more neutral or positive measures for the support of foetal life in pregnancy, the Legislature would be acting unfairly. Head 19 is unfair because it asks women, rather than the state, to bear the weight of the public duty to vindicate foetal life.
Repeal sections 58 and 59 of the Offences Against the Person Act 1861, without providing for a new offence.
Recommendation 4(b) (as an alternative to 4(a)):
If the Legislature is not willing to take the route of decriminalisation, it should at minimum define the offence so that it excludes attempts to end a pregnancy. The phrase “[A]ny act with the intent to destroy unborn human life” is too broad and may include those acts which are ultimately unsuccessful in destroying unborn human life. Secondly, the maximum penalty for the offence should be reduced significantly from 14 years. This penalty is disproportionate in punishing a decision which implements the defensible moral choices of women and their healthcare providers.