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Published: Fri, 02 Feb 2018
Abortion is termination of a pregnancy
Abortion is a very controversial issue regarding law and ethics. Abortion is termination of a pregnancy which is done by removing the foetus from the uterus of the pregnant woman and therefore kills the foetus. The total number of abortions in 2007 was 198,500 which showed a rise of 2.5% since 2006 where it was 193,700. There are many legal and moral issues regarding abortion and these main issues include the morality of the law, the balance between the personal autonomy of pregnant women and rights of the foetus and human rights concerning both the foetus and the pregnant women.
The controversial issues surrounding the legality of abortion were originally governed by common law prior to 1803. The first references to abortion came into sight in English law in the 13th Century where abortion was acceptable up until ‘quickening’ of the foetus. This followed Church teachings where ‘quickening’ was a term used for when it was believed that the soul enters the foetus. The term ‘quicken’ means ‘to reach the stage of pregnancy at which the child shows signs of life’. This meant that abortion was only an offence if the foetus could be felt moving; the period where movement is felt is between 16-20 weeks.
In 1803 the Ellenborough Act was introduced which made abortion post-quickening a criminal offence which carried a maximum life imprisonment. This act was amended in 1837 where the distinction between abortion before and after quickening was removed.
Sections 58 and 59 of the Offences Against The Person Act 1861 which still applies in today’s world makes abortion a criminal offence which carries a life imprisonment for any women who self-procure a miscarriage and a maximum of 5 years imprisonment for anyone who aids a woman with an abortion.
Section 1 of the Infant Life Preservation Act 1929 creates a new crime of killing a viable foetus. Section 1 states that the offence can only be committed where the foetus is ‘capable of being born alive’ and under subsection 2 a foetus of 28 weeks or older can be assumed to be capable of being born alive, and therefore a viable foetus, although this is only a presumption.
The Abortion Act 1967 was introduced which legalised abortion in specific cases. This Act introduced by David Steele codified abortion and came into effect on the 27th April 1968. This Act set out circumstances where abortion can be carried out legally and also provided a number of requirements. These circumstances are defined in section 1(1); that the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or that the termination is necessary to avoid risk of grave permanent injury to the mental or physical health of the pregnant woman; or that it is necessary to avoid risk to the life of the pregnant woman; or that there is a substantial risk that if the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped.
It should be noted that the 24 week limit technically only applies to Section 1(1)(a) of the act and abortions under the rest of the Act have taken place legally after the 24 weeks into the pregnancy.
This act has been amended by the Human Fertilisation and Embryology Act 1990.
As today’s law stands abortions must be done by a registered medical practitioner carried out in a government approved hospital or clinic and has to be approved by two doctors (one in an emergency).
Although abortion is governed by statute, it can be argued that society has influenced the change in the legislation. A landmark case concerning abortion provided a defence for necessity. In R v Bourne, Dr Alex Bourne was acquitted of having performed an illegal abortion. He believed that abortion should be made legal in exceptional cases. Dr Bourne performed an abortion on a suicidal 14 year old girl with the permission of her and her parents after she was violently gang-raped. He was acquitted of performing an illegal abortion because it was argued that it was inevitable that if the pregnancy was continued with, it would significantly affect the mental health of the girl. This landmark case set case-law precedent and women were allowed to get a safe abortion if it is to preserve the life of the woman, although a psychiatrist’s approval was needed. This case may have significantly influence the preceding legislation because after this case, there was a lot of uncertainty concerning abortion.
The Abortion Act 1967 does not legalise abortion completely but allows exceptions for certain circumstances and it gives the responsibility of decision making to doctors and not women. This poses many questions as to the ethics regarding abortion and the rights of women. The rights of women are taken into consideration yet there is still an issue regarding rights of the foetus balanced against the personal autonomy of women.
Abortions are allowed in certain circumstances which regard the autonomy of the women, yet rights of the foetus are not taken into account in these situations. This poses ethical problems with the balance between legal rights of the foetus and the autonomy of women. The rights of the foetus will need to be examined in light of rights of women.
The law is clear that a foetus has no rights and is not a legal entity until it is born. Although it’s interests are protected by law under the statutes governing abortion, a foetus does not have a right to life under article 2 of the Human Rights Act 1998; this is because a foetus, until born, is not entitled to any human rights as it has no legal personality. This poses an issue ethically because in this case the law may be seen to be immoral as a baby born premature at 24 weeks is entitled to rights under the Human Rights Act 1998 yet a foetus still in the womb is not entitled to any rights. This therefore means that where abortion is concerned the moral status of the foetus is not acknowledged. This reflects tensions raised in the Hart/Devlin debate where the law is governing and can be argued that this means that society cannot defend itself against a threat to its moral structure as Devlin argued.
Another ethical problem of abortion is the question whether the pregnant woman has a right to decide if she is going to carry the baby to full term. The rights of the pregnant women should be looked at further. Although the Right to Life is an important right, it does not apply to the foetus as covered before. The right to life (even if it did apply to foetus’) does not override the autonomy of the pregnant woman; under Article 8 of the Human Rights Act 1998 it is stated that a woman has a right to respect for private and family life. The question is whether or not abortion is a human rights issue, if women have this right under Article 8 it should mean that the women should be able to make an independent decision regarding abortion and the law as it stands violates the human rights of pregnant women and interferes with a pregnant woman from exercising her human rights. The fact that women do not have an independent decision could indicate that although a foetus does not have legal rights, it’s interests are protected by law due to the restrictions on abortion. This shows the balance between the legal rights of the foetus and the rights of the pregnant woman and considerably reflects the tensions raised in the Hart/Devlin debate because both legal issues and moral issues are addressed by the legislation concerning abortion. Although Article 8 infringes the right to life of the foetus, the legislation does offer some protection to the foetus by placing restrictions on abortions. As a foetus is capable of being born alive after 24 weeks, there is an issue where a foetus at 24 weeks has no rights yet a baby born prematurely at 24 weeks is entitled to the same human rights that adults are. This distinction is a controversial issue and poses a question of morality regarding the rights of the foetus. A foetus can also not be abducted; this means that a pregnant woman cannot be stopped from leaving the country. These issues pose problems as to do with the balance of the rights of the foetus and the personal autonomy of the woman, it is clear that the rights of the woman clearly override the rights of the foetus although the foetus is given some rights in the form of protection by legislation.
Since the legislation allowing legal abortions in certain circumstances, safe abortions have become more readily available and even more so since nurses have been allowed to perform abortions since Royal College of Nursing v DHSS. This could have significantly been influenced by society as there was a high number of illegal backstreet abortions occurring which lead to high mortality rates for these women. The changes in the common law have lead to much safer methods of abortion being available.
Abortion has brought out many moral and ethical issues that signify the issues that were raised in the Hart/Devlin debate. The debate between Professor Hart and Lord Devlin indicates the distinction between law and morality and shows that both law and morality are closely linked.
Lord Devlin argued that the law should uphold society’s moral values and that the morality should be based on the ‘right minded citizen’. Lord Devlin argued 3 main principles; the first being that individuals should have the freedom and privacy to do what they wanted without compromising society’s moral values. This clearly ties in with abortion because it can be argued that a pregnant woman aborting her foetus is doing so with freedom and privacy and the law should not restrict this because technically it is not in the interests of society. This therefore supports the argument for the personal autonomy of the woman as this principle shows that it should be acceptable for a woman to abort her foetus and the decision should exclusively rely on her. The second principle that Devlin argued was that Parliament and the Judiciary should be wary about altering laws that concerned morality and that the law should be used to punish any detestable transgression against ‘right minded citizens’. This could refer to issues such as abortion which is a very touchy ethical subject and placing restrictions on abortion could go against this principle. The third and final principle that Devlin argued was that the law should only be used as a guide to show the minimum standard of acceptable behaviour that everyone should adhere to and society as a whole should have more prominent underpinning standards.
Professor Hart argued against Lord Devlin’s principles and did not agree that the law should uphold the morals of society as it was deemed ‘unnecessary’. He rejects the view of the ‘right minded citizen’ and claimed that morality ‘were more often due to prejudice, fear, ignorance, and misunderstanding’ Hart gave 4 main reasons for not criminalising that which the ‘right minded person’ objected tol; 3 of these are relevant to abortion: The first is that punishment of someone does harm to them, and if their actions have done no harm to anyone else, then this surely cannot be correct. Secondly, free will is very moral, so undue interference with it would be immoral. Thirdly, this free will can allow learning through experimentation. These reason applies to abortion as it may be seen that the woman aborting a foetus is not doing harm to anyone but herself and therefore she should not be punished and abortion should be more readily available to her and the decision should be her own and not down to anyone else. The law behind abortion also interferes with a woman’s free will as she is not able to make an independent decision.
The issue of abortion clearly signifies many issues regarding morality and the law. The rights of the woman clearly override rights of the foetus although they are protected to a certain effect due to restrictions made by statute.
Society may have influenced changes within the law and what is acceptable and what is not; since the Ellenborough Act up until today, the law has developed significantly. The case of R v Bourne indicates that moral and ethical issues within society may have influenced development of the law and as the law was unclear after this case, it may have influenced the codification of abortion with the Abortion Act.
Article 8 of the Human Rights Act and the argument from Hart suggests that the law may interfere with the pregnant woman’s rights as they are not given free will or any privacy regarding abortions as they are not able to exercise their human rights fully and cannot make independent decisions.
As there is controversy regarding abortion where one person may have different views than another, whether or not the foetus should have clear human rights as it has the potential to be born and survive alone. The law should be amended and made much clearer so that it is more certain and so that it can be interpreted more easily.
Jackson – Medical Law. Text, Cases and Materials, 1st Edition, 23 February 2006
The Hart-Devlin Debate Revisited, The American Journal of Jurisprudence, Vol. 35, (1990)
Law and Morality: The Lord Devin – H.L.A Hart Debate Revisited, American University, Washington, D.C (02/16/90)
Human Rights Act 1998.
The Abortion Act 1967.
The Ellenborough Act 1837.
The Infant Life Preservation Act 1929.
The Human Fertilisation And Embryology Act 1990.
The Offences Against The Person Act 1861.
Paton v BPAS  QB 276
R v Bourne  3 ALL ER 615
Royal College Of Nursing Of The UK v DHSS  AC 800
Other Written Sources
Greg Hurst, Plans to Relax Law on Early Abortion, The Times, (2007)
The Independent, The Debate Over Abortion Is Unwanted And Irrelevant, (2008)
Medical Law And Ethics
Department of Health – http://www.dh.gov.uk
Statute Law Database – http://statutelaw.gov.uk
BBC Website – http://www.bbc.co.uk
The Times Online – http://www.timesonline.co.uk
Abortion Rights – http://www.abortionrights.org
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