In December 2009, 32-week-pregnant Brodie Donegan from New South Wales miscarried after being struck by a car. The driver was charged with causing grievous bodily harm to the mother, but the death of the unborn child prompted no additional penalties. This was not an unusual verdict: under State law, a foetus is not considered to be a human being in any meaningful sense. At best, it is considered to be a form of property; up to a certain stage, lawfully permitted to be terminated at will.
Needless to say, this is not the case for newborn infants. Killing a child, no matter its age, is deemed a heinous act in both legal and cultural terms. Although many countries, including Australia, have included postpartum depression as a valid defence against murder charges, base penalties are on par with standard homicide sanctions.
Biologically speaking, this is a curious state of affairs. Members of the human species do not ‘begin’ at birth any more than lizards or aphids do. While one might have been forgiven for thinking so in less scientifically developed times, we now know that the preceding period of gestation is merely the earliest of several stages of development in an organism’s life-span. Any suggestion that either ‘life’ or ‘personhood’ happens to coincide with one’s first unassisted breath is, thus, something of a semantic game.
Two significant factors, however, further complicate this issue: first, the foetus’s dependence on a human carrier, who must sacrifice her bodily autonomy in order to sustain it; second, the necessity of making arbitrary demarcations of some kind or other.
It is the former consideration that has historically dominated the abortion debate, and rightly so. No serious discussion on the matter can ignore the fact that the significant burden of pregnancy and childbirth – while gladly accepted by some – is not something that all women wish for or choose. The idea, then, of legally forcing a woman to carry an unwanted pregnancy to term can never be anything but problematic.
It is too glib, however, to dismiss the alternative as less so. Whilst it is unfortunate that anti-abortion rhetoric tends to be dominated by the Christian fundamentalist right, the concerns raised by that movement deserve to be taken a little more seriously. Despite feminist rhetoric to the contrary, the desire for patriarchal control over women’s bodies seems strangely absent from pro-life groups. In their eyes, they are fighting for human rights. We can and should reject their claims about the existence of a soul or some kind of divine right to existence, but it would be wrong to characterise their whole fight as frivolous.
At the moment, the battleground is the New South Wales parliament, and the bill in question is “Zoe’s Law”. Named after Donegan’s unborn child, it seeks to grant limited personhood under law to wanted foetuses at a late stage of development. It is perhaps a sign of the success of the pro-choice movement in Western society that any potential impact on abortion law is off the table, although the usual suspects are nonetheless hovering: the anti-abortion lobby, who see the bill as a possible step forward for their cause, and their opponents, who see it as the beginning of a dangerous slippery slope.
In some respects, this is characteristic of the abortion debate: two sides very much arguing at cross purposes. Their preferred designations – pro-life; pro-choice – exemplify that. It would perhaps be productive for each side to recognise that their opponents are, in one way or other, fighting for the same long-term goal – that is, human rights. For those of us not already invested in the debate, that is how the discussion ought to be framed.
It is important, however, to keep in mind the consequences of these positions. Firstly, it should go without saying that the rights of the mother need to be preserved as much as possible. It is deplorable that societies of the past forced women with unwanted pregnancies into dangerous unsupervised abortions (a paradigm that still, shockingly, seems to persist in parts of the developed world). Similarly, the accompanying social shame – fostered and tolerated by a moralistic society – has no place in a developed society. Any legislation aimed at protecting the rights of the foetus would have to be extraordinarily carefully-worded lest mothers face prosecution for no longer wanting to carry a child.
These caveats need not be an impediment to reform. If, however, pro-life advocacy is to gain more credibility, sensible, realistic goals need to be ascertained. Clearly, a fundamentalist interpretation of human rights – i.e. beginning at conception – is unworkable and likely unwanted by all but the most extreme pro-life advocates. That leaves two options: to either adjust the marker to some arbitrary point (of which birth might well be as good as any) or to adopt something of a sliding scale. The latter is an area oft-explored by Peter Singer, whose conclusions – that young post-natal infants may not warrant the legal protections offered to adults – have proven uncomfortable and highly controversial. These, however, are the discussions we need to have if we are ever to comprehensively get to grips with the topic of abortion.
The status quo view, reflected by Western law, is that it is absurd for the rights of a barely sentient organism to be made equal to those of an adult human being. Most reasonable people would agree with this. There is, however, a catch here: the modern paradigm of human rights, as we understand it in the post-enlightenment age, allows for little discrimination between individuals based on metrics such as intellectual capacity, sensory development or physical autonomy. It is not considered more of a crime to kill young children than infants, and it is certainly not considered less heinous to murder an eight-year-old than it is to do the same to an adult. Compared to these, the difference between a newborn and a late-term foetus is relatively insignificant.
Clearly, there is something more at stake here. In our society, our worth is not merely judged according to our productivity or ability to get the most of out of life. For better or for worse, we take care of those who cannot protect themselves. While a newborn baby may not have much in the way of personhood, we recognise that it is a growing human being that ought to be cared for. An eight-month-old foetus is, arguably, very much in the same camp.
Of course, exceptional circumstances aside, abortions are generally not conducted at such a late stage; that, however, is no excuse not to legislate on the matter. While many pro-choice advocates will vehemently disagree, the fact is that there is nothing that a society such as ours doesn’t legislate on. Silence constitutes permission. While it may seem a noble conclusion, declaring the future of the foetus to be purely a matter of the mother’s preference is a rejection of its rights. That may be a reasonable conclusion, but it is a legislated conclusion.
The most unsettling consequence of this debate may well be that a fundamentalist defence of the human right to life may no longer be viable. In a utilitarian society, such as the one Singer advocates, this is a feasible conclusion. Indeed, with public support for euthanasia growing, we may well be headed in such a direction. Hand-wringing from religious groups aside, that is and will be an enormously challenging issue.
The debate over “Zoe’s law”, then, should be a welcome one. As much as the workings of our democracy may disappoint us, we should have a little faith in our lawmakers’ ability to work through complex issues without reaching fundamentally unreasonable conclusions. The progress of our society’s treatment of the matter – from the backroom abortions of the 1950s to Roe v Wade and beyond – ought to give us some hope. Considering what’s at stake, we may well need it.
David Heslin
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