Government of the Russian Federation
Federal State Autonomous Educational Institution of
Higher Professional Education
"National Research University
"Higher School of Economics"
Public Policy Department
Midterm paper:
“Abortion debate: pro et contra”
Student of
group 120
Ekaterina Vdovinets
Moscow, 2011 г.
Preface
Abortion raises a lot of heated debate as it is an insoluble clash of rights and interests of two
subjects: woman and her child (fetus). I have chosen this topic, because the discussion on whether
to prohibit abortion or not seems never to end. As for me, I am not really able, whose rights shall
prevail in this situation, so I decided to look deeper into the problem of abortion legalization.
Almost 2/3 of the world's women currently reside in countries where abortion may be obtained on
request for a broad range of social, economic or personal reasons. Abortion laws vary widely by
country, ranging from those in Chile, El Salvador, Nicaragua, the Dominican Republic, Malta,
Uruguay and Vatican City, which ban the procedure entirely, to those in the United Kingdom and
the United States, which restrict abortion after the point of fetal viability, and Canada, which has
removed abortion from the Criminal Code.
Opponents of abortion state that termination of pregnancy is a murder and thus shall be prohibited.
Proponents of legalization of abortion claim that every woman has the right to determine her future
and be the master of her body and health, that fetus is not a human being until birth and that
prohibiting abortions has grave effects on maternal health and death rates.
Abortion: Pro
One side of the debate – proponents of the woman’s right for abortion – contend that it is woman’s
inalienable right to decide whether to preserve or terminate her pregnancy. The grounds of this
opinion are as follows.
First of all nobody apart from the woman herself can be the master of her own destiny. The birth of
a child affects woman’s life in a lot of ways: mother is to perform all care about the child (according
to sociological data father’s input in nurturing a child amounts to 1.9% of that of the mother). It is
the woman who most often gets all the burden of raising the child in case of divorce (and about
50% of marriages end in court)1.
It is up to the woman to be the master of her own health and life. Here is the brief list of pregnancyinduced complications: Chicken Pox, Cholestasis of Pregnancy, Cytomegalovirus (CMV) Infection,
Ectopic Pregnancy, Gestational Diabetes, Group B Strep Infection, HELLP Syndrome,
Polyhydramnios,
HIV/AIDS
during
Pregnancy,
Hyperemesis
Gravidarum,
Listeria,
1
Divorce rates data, 1858 to now: why are divorces going up? | New | guardian.co.uk URL:
http://www.guardian.co.uk/news/datablog/2010/jan/28/divorce-rates-marriage-ons (дата обращения: 16.12.2011).
2
Oligohydramnios, Molar Pregnancy, Preeclampsia, Pregnancy Induced Hypertension (PIH),
Pregnancy Tipped Uterus Toxoplasmosis, Urinary Tract Infection, Yeast Infection 2. This list does
not include common discomforts and maternal death which is probable even in most developed
countries of the world3.
Proponents of women’s right for abortion also state that apart from the fetus, a woman has
consciousness, ability to dream, feel and hope which suggests that woman is more human in a sense
than her fetus.
The second group of arguments of legal abortion proponents concerns the correlation between
prohibiting abortion, maternal health, birth rate and real abortion rate.
The case is that prohibiting abortion does not eliminate abortion. It makes women resort to illegal
abortion and causes the dramatic rise in maternal death and infertility rates4. Illegal abortion is the
leading cause of maternal death. Also prohibiting abortion makes women resort to termination of
pregnancy at longer terms which raises the risk of complications and future infertility. So
prohibiting abortion does not necessarily have a positive effect on the demographic situation (which
counters the argument of pro-life activists).
What is even more important, researchers have found the correlation between legalizing abortion
and crime rate5. Steven Levitt of the University of Chicago and John Donohue of Yale University in
their 2001 paper "The Impact of Legalized Abortion on Crime" point to the fact that males aged 18
to 24 are most likely to commit crimes. Data indicates that crime in the United States started to
decline in 1992. It is suggested that the absence of unwanted aborted children, following
legalization in 1973, led to a reduction in crime 18 years later, starting in 1992 and dropping sharply
in 1995. These would have been the peak crime-committing years of the unborn children.
What is more, unintended pregnancy poorly affects the demographic situation in other ways:
- Unintended pregnancies preclude chance to resolve sexually transmitted diseases (STD) before
pregnancy. Untreated STD in pregnant woman can result in premature delivery, infection in
newborn or infant death
- Women with an unintended pregnancy are more likely to suffer depression during or after
pregnancy
- Poorer maternal mental health
2
Pregnancy
Complications:
American
Pregnancy
Association
URL:
http://www.americanpregnancy.org/pregnancycomplications/ (дата обращения: 16.12.2011).
3
Maternal Mortality URL: http://womanstats.org/data/images/map3.6maternal_mortality_compressed.jpg (дата
обращения: 16.12.2011).
4
Abortion
The
Impact
of
Illegal
Abortion
–
Our
Bodies
Ourselves
URL:
http://www.ourbodiesourselves.org/book/companion.asp?compID=100&id=20 (дата обращения: 16.12.2011).
5
The Impact of Legalized Abortion on Crime by John Donohue, Steven Levitt URL:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=174508 (дата обращения: 16.12.2011).
3
- Increased risk of physical violence during pregnancy
- Reduced likelihood of breastfeeding, resulting in less healthy children
- Lower mother-child relationship quality
- Children whose births were unintended more often suffer low birth weight, suffer greater infant
mortality, are likely to be less mentally and physically healthy during childhood, are at higher risk
of child abuse and neglect, are less likely to succeed in school, are more likely to live in poverty, are
more likely to have delinquent and criminal behavior.
If we translate all these arguments into human rights discourse, I shall say that the question is
about the woman’s right to have rights (freedom of will, freedom to determine her own
future) and woman’s right to choose (choose to become a mother or not, choose when to
become a mother), in extreme cases the discourse can boil down to the woman’s right to life
(in case of pregnancy complications or unsafe abortion outcomes) – as in Article 3 of the
Universal Declaration of Human Rights (“Everyone has the right to life, liberty and security
of person”). This all falls into regulation by Article 12 of the Declaration (“No one shall be
subjected to arbitrary interference with his privacy, family”).
Recalling that anti-abortion laws do not really affect the number of abortions themselves, I
would also contend that particular states create a kind of state of exclusion for unintentionally
pregnant women, forcing them to resort to unlawful practice of illegal abortion and thus
deliberately creating a sector of criminal services6. Plus we shall not forget that prohibiting
abortion (and thus causing more unintended pregnancies) raises the risk of killing the newly
born child by his mother. Here once again the state creates more ground for crime.
This all is subject to Article 28 of the Declaration: “Everyone is entitled to a social and
international order in which the rights and freedoms set forth in this Declaration can be fully
realized” – any woman has the right not to be forced to choose between law and her health
and life.
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Legal
Or
Not,
Abortion
Rates
Compare
–
NYTimes.com
http://www.nytimes.com/2007/10/12/world/12abortion.html (дата обращения: 16.12.2011).
URL:
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Abortion: contra
The second party to the abortion debate is the “pro-life” movement – opponents of legal abortion.
They state that from the mere moment of conception the fetus is not actually a fetus but a full-scale
human person, entitled to all human rights including the right to life and the right to be freed from
torture (which happens during the abortion procedure).
For the most part anti-abortion activists resort to the right to life discourse, meaning that any
action which destroys an embryo or fetus kills a person. The right to life is stipulated by
Article 3 of UDHR “Everyone has the right to life, liberty and security of person” and Article
6 of the Convention on the Rights of the Child. Any deliberate destruction of human life is
considered ethically or morally wrong and is not to be mitigated by any benefits to others, as such
benefits are coming at the expense of the life a person.
The debate of “if abortion kills the child or not” is centered around the issue of the personhood of
the fetus (if we are talking about a person, then abortion is definitely a murder, if there is no person,
then it is a medical procedure). There are at least two ways to determine the personhood – through
biological criteria and through psychological ones.
The example of the latter is the argument that something can only be a person if he/she is self-aware
and has temporal awareness and therefore is often used by abortion proponents: abortion is morally
acceptable, because a fetus does not meet this definition of personhood. For example, Mary Ann
Warren suggests consciousness (at least the capacity to feel pain), reasoning, self-motivation, the
ability to communicate, and self-awareness as indicators of personhood. According to Warren, a
human being need not exhibit all of these criteria to qualify as a person with a right to life, but if a
human being exhibits none of them (or perhaps only one), then it is certainly not a human person
(who certainly shall enjoy all human rights and freedoms). Warren concludes that as the fetus
satisfies only one criterion - consciousness (and this only after it becomes susceptible to pain), the
fetus is not a person and abortion is therefore morally permissible.
However this position is disputed as these criteria for personhood would disqualify two classes of
born human beings – reversibly comatose patients, and human infants – from having a right to life,
since they, like fetuses, are not self-conscious, do not communicate, and so on.
The alternative approach of defining personhood is based on the biological criteria. A fetus depends
on the female body thus some conclude that it is only after birth that we can speak of a person,
having the right to life and all the others. Some literature also demonstrates attempts to determine
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personhood based on the time of formation7 of nervous system of a human being (allegedly the time
when the personality is starting to form and thus a unique person emerges).
Another approach is based on a being's natural or inherent capacities. According to this approach, a
being essentially has a right to life if it has a natural capacity to develop the relevant psychological
features; and, since human beings do have this natural capacity, they essentially have a right to life
beginning at conception (or whenever they come into existence). Critics of this position argue that
mere genetic potential is not a plausible basis for respect (or for the right to life), and that basing a
right to life on natural capacities would lead to the counterintuitive position that anencephalic
infants, irreversibly comatose patients, and brain-dead patients kept alive on a medical ventilator,
are all persons with a right to life. Respondents to this criticism argue that the noted human cases in
fact would not be classified as persons as they do not have a natural capacity to develop any
psychological features.
Lastly, there is the least helpful legal approach. "Person" has several, poorly defined meanings in
law, with children and the mentally infirm occupying a grey area. Children are not considered
persons until they reach the age of majority and are able to enter into legally binding contracts and
sue or be sued. For the purposes of Offenses against the person law, however, they are considered to
be persons. The Convention on the Rights of the Child states the following in Article 1: “For the
purposes of the present Convention, a child means every human being below the age of eighteen
years unless under the law applicable to the child, majority is attained earlier”. This does not give a
clear clue whether or not a fetus a child.
The other viewpoint of anti-abortion activists is that the fetus as a human being has the right
to be freed from torture. This refers to what the fetus might supposedly feel during the
abortion procedure. This is regulated by Article 5 of UDHR (“No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”).
Fetal pain, its existence, and its implications are part of a larger debate about abortion. Many
researchers in the area of fetal development believe that a fetus is unlikely to feel pain until after the
sixth month of pregnancy8. Pain involves sensory, emotional and cognitive factors, leaving it
"impossible to know" when painful experiences are perceived.
Also we may resort to discrimination discourse as legal abortion can be perceived as
discrimination against the unborn (it is not legal to terminate life of a full-fledged human being,
7
Personhood: Is a Fetus a Human Being? URL: http://www.abortionaccess.info/fetusperson.htm (дата
обращения: 16.12.2011).
8
Study: Fetus feels no pain until the third trimester – Health – Women’s Health – msnbc.com URL:
http://www.msnbc.msn.com/id/9053416/ (дата обращения: 16.12.2011).
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but it is legal to terminate the existence of a fetus). Article 2 of the UDHR states that “Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status”.
There have been several cases of legal protection of fetal rights:
-
The American Convention on Human Rights is a treaty signed by 24 Latin American
countries in 1969, which states that from the moment of conception, human beings have
rights. It came into force in 1978.
-
The Unborn Victims of Violence Act is a United States law introduced into congress in 1999
which defines violent assault committed against pregnant women as being a crime against
two victims: the woman and the fetus she carries.
-
In 1983, the Eighth Amendment of the Constitution of Ireland, also known as the "Pro-Life
Amendment," was added to the Constitution of The Republic of Ireland by popular
referendum. It recognizes "the right to life of the unborn".
-
In 1993, the Federal Constitutional Court of Germany held that the constitution guaranteed a
right to life from conception, but that it is within the discretion of parliament not to punish
abortion in the first trimester, providing that women agreed to undergo special counselling
designed to discourage termination and "protect unborn life". The intermediate decision was
the result of an attempt to join East Germany's abortion law to that of West Germany after
reunification in 1990.
Other governments have laws in place that state that fetuses are not legally recognized persons:
In Canadian law, under section 223 of the Criminal Code of Canada, a fetus is a "human being ...
when it has completely proceeded, in a living state, from the body of its mother whether or not it
has completely breathed, it has an independent circulation or the navel string is severed."
Conclusion
So here we have a complex tangle of rights of two subjects: the mother and her child: right to have
rights, right to choose destiny, right to life and health and security, right to privacy versus right to
have rights and right to life and security, right not to be subjected to torture, as well as creation of
state of exclusion and discrimination.
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