What are the legal implications for UK abortion law of establishing the sentience of the foetus?
'This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent'
Roe v. Wade - January 22nd 1973 - Justice Blackmun
The problem for any modern legal system that wishes to regulate the private lives of citizens within its jurisdiction is the balance between principles of liberalism and paternalism. In certain areas this balance can be relatively uncontroversial such as the legal response to child abuse but one of the most difficult areas of regulation is the issue of abortion. The leading pieces of legislation in family law such as the Children Act 1989 and the Adoption Act 1967 all place a premium on the best interests of the child however with the issue of abortion there is an intersection of competing concerns. As an ethical issue various cultures and belief systems have struggled with defining the foetus and the laws paternalistic instincts as regards children wander into somewhat of a moral 'grey-area' when it comes to the protection and regulation of an unborn child.
This is hardly a novel problem, whilst in modern-western society the source of authoritative normative rules is the law the Roman Catholic Church had similarly prevaricating opinions over the years when its influence was at its zenith. In 1588 Sixtus V issued the first papal canon Effraenatam which decreed that all abortions would result in immediate excommunication for the mother in question. This rule was ameliorated by Gregory XIV in 1591 to the effect that unless the foetus became 'ensouled' it would not be an offence to procure an abortion .Furthermore the issue of abortion has been one that has traditionally divided eminent scholars; people such as Plato, Aristotle, Ovid and Seneca have all written in support of abortion whereas others such as Herodotus, St. Augustine and Gratian have expressly disapproved of the practice . The debate is still raging with many jurisdictions around the world as to whether or when abortion should be allowed. The quotation from Roe v. Wade above is of significance in this context because it is an oft quoted passage that is understood to form part of the ratio decidendi of that decision and yet there is one obvious missing component; any consideration of the unborn child. In this work I intend to look at the issue of foetal sentience and the implications for the legal regulation of abortion in particular .
The dichotomy between paternalism and liberalism is at its starkest here: either the state allows the ultimate liberalism and allows a mother to kill a potentially sentient foetus or it is paternalistic and places restrictions on the bodily autonomy of mothers. This piece of work is attempting to discuss these issues and come to a conclusion on the balance between liberalism and paternalism that ought to be reflected in the legal framework. We will look to conclude on the balance of rights that should be given to mother and foetus respectively and whether the modern approach respects the potential for sentient life in a foetus. The work will be taking a jurisprudential approach to the issue and regarding the arguments of leading legal scholars such as Bentham, Rawls and Dworkin.
Focus of Modern Abortion Law
We need to have a brief understanding of the current operation ofUK Abortion Law and the approach that it takes in order to startcritiquing it from a jurisprudential standpoint. The law in thiscountry takes an interesting stand in that technically speaking allabortions are illegal, under the provisions of the Offences Against ThePersons Act 1861. That is subject to the rather large caveat of fallingwithin the ambit of s.1 (1) of the Abortion Act 1967 :
'...where two registered medical practitioners form the opinion 'ingood faith' that the pregnancy has not exceeded its twenty-fourth weekand that the continuance of the pregnancy would involve risk, greaterthan if the pregnancy were terminated, of injury to the physical ormental health of the pregnant woman or any existing children of herfamily'
An abortion can also be allowed after the twenty-fourth week in similarterms were it is necessary to prevent grave permanent physical ormental injury, there is a risk to the mother's life or substantialchance of the child being born with physical or mental abnormalities.This has been argued by scholars, pertinently for this work, to meanthat the UK 'does not so much liberalise the regulation of abortionthan 'medicalize' it' . The main criticism of this is that whilst itprovides woman with an avenue down which they can pursue bodilyautonomy it is hardly the ideal situation. The major reason fordissension is because it is reliant on the subjective views of doctorsand their particular beliefs on abortion; there is no transcendentprinciple of a woman's right to choose and furthermore the realisationthat a doctor may refuse a woman's request can be detrimental to thatwoman . As we shall see in later sections our approach of'medicalising' abortion is far from the only approach the obviousexample is the American approach which advocates a woman's 'right' toan abortion up to a certain point in the pregnancy .
A further anomaly is the existence of the Infant Life (Preservation)Act 1929 which at s.1 creates the offence of a killing child whilst inthe womb which 'is capable of being born alive' . The Abortion Act 1967provides no defence to such a crime and it is difficult to see how itfits in with the general law on abortion, as well as the obviousambiguity of what capable of being born alive means in substantialterms.
This position is oddly juxtaposed with the common law's approach tothe foetus' in general which appears not to support recognition of thefoetus as having legal personality . The most authoritative statementof the law in this respect was in the case of Paton v. BritishPregnancy Advisory Service where Sir George Baker P. stated:
'The foetus cannot, in English law, in my view, have a right of itsown at least until it is born and has a separate existence from itsmother. That permeates the whole of the civil law of this country (Iexcept the criminal law, which is now irrelevant)'
There are exceptions, as Sir Baker pointed out, that give a babycertain rights in succession and tort for example however these arecontingent on the foetus being subsequently born alive. Thus primafacie we seem to have a contradictory situation whereby criminalsanctions are attached to an abortion which fails to meet with medicalapproval and yet in all other respects the law refuses to acknowledgethe existence of the thing we are attempting to protect. This doctrinehas been tested and been shown to be numerous times in cases such as Cv. S where a court refused to grant a father an injunction to preventa mother from obtaining an abortion; in this case the issue was that oflocus standi of the father, it might appear on one interpretation thathe had been suing on behalf of the baby but Heilbron J. made it clearthat because the child had no legal personality there could be no locusstandi as a protector of the unborn child's interests .
However, in many ways this contradiction seems part of a deeper andmore fundamental dilemma on the part of the judiciary. This attitudehas been amply highlighted in the recent cases on refusal of acaesarean section: In Rochdale Healthcare (NHS) Trust v. C a patientin labour stated she had already undergone a caesarean section beforeand said she would 'rather die' than go through it again, despiteobstetricians report that he found her competent it was held she wasunable to weigh up the consequences and was held incompetent. In Re La woman in obstructed labour suffering from needle phobia was heldincompetent due to the phobia temporarily overriding her judgement. StGeorge's Healthcare NHS Trust v. S; R v. Collins ex parte S where awoman suffering from severe pre-eclampsia, oedema and proteinurianeeded to have a c-section but refused on grounds she wanted a naturalbirth, despite being a qualified veterinary nurse who understood whatwas going on and the fact she wrote a letter articulating her reasonsshe was still held incompetent, Hogg J heard no evidence on the issueof competence but just some representations as to her having suffereddepression before and the order was made.
These cases highlight that the courts are not willing to carry theirliberal principles of non-recognition to their fullest extent forexample whilst waxing lyrical in a case on refusal of medical treatmentRe T (Adult: Refusal of Medical Treatment) Lord Donaldson appendedthe caveat 'The only possible qualification [to the right to refusemedical treatment] is a case in which the choice may lead to the deathof a viable foetus'. This anomalous position is further muddied by thefact that a lot of the caesarean section cases were overturned onappeal by which time bodily autonomy has been invaded and asButler-Sloss LJ stated in Re S (Adult: Refusal of Medical Treatment)the lack of legal recognition of a foetus means that its interestscannot be weighed against the mothers as it has no interests separatefrom the mother until birth, she noted that this could lead to someethical dilemmas but that 'nonetheless...this is not a court ofmorals'.
The point of the caesarean section cases is to highlight that when itcomes to penumbrary areas such as the seemingly irrational decision ofa mother to endanger the life of her almost born child over somethingas trivial as a phobia of needles the courts seem to prevaricate overtheir otherwise liberal principles. The courts are obviously weigheddown with balancing the liberalism of an adult being allowed to refusemedical treatment and the paternalism of protecting a potentiallyhealthy unborn child. One of the fundamental issues however is thatwhilst in certain areas we can see that the court's rhetoric is perhapsnot supported by the substantive outcomes the main focus is still onthe mother. In the actual cases there is very little dialogue over thepotential for suffering and pain that a foetus may feel in the womb.
The point has also to be made that in practice whilst abortion isper se illegal this is not preventing the vast majority of woman havingaccess to the facility and general medical opinion supports a liberalinterpretation of the Abortion Act 1967 . What the above discussionhighlights in relation to this practical view is that the law is influx with contradictions being rife. The practical outcomes in thecaesarean section cases when contrasted to judicial dogma about thelegal status of the foetus seem to be contradictory and furthermore thelaw's medicalisation approach when contrasted with the liberal approachof doctors exhibits a similar inconsistency. The issues are linked inthat the focus of abortion law, along with situations of refusal ofmedical treatment and drug abuse , gives rise to what is known as thematernal-foetal conflict.
There is a further issue to consider over the background to theAbortion Act 1967; as we discussed above the law did sidestepped fromthe discussion of the somewhat difficult deontological rights discourse. The 1967 Act was not a result of large medical campaigning butrather the 'reductive characterisation of abortion as almost completelya medical issue, and the consequent consolidation of medical control ofabortion, is mirrored by a very high degree of argumentative deferenceaccorded by the House [of Commons] to medical expertise and opinion' .The arguments for medicalisation that were advanced in the passage ofthe Abortion Act seemed to be two-fold. There was an argued deferenceto the problem as one of medical ethics and also as one of medicalexpertise. This deference was not unanimous and there were a number ofcriticisms of placing important social questions in the hands ofdoctors. This deference had the consequences of cementing a doctor'sindependence; in particular deletion of clause 1 (c) and 1 (d) from thedraft Abortion Bill, which were to allow abortion for social reasons orin hard cases such as rape, are argued to have 'accepted the mainarguments of the BMA and the RCOG and to sacrifice the heart of theBill' . The original impetus for the bill had been to give women morerights and liberalise abortion but instead the law as it stands'damages the integrity of the abortion debate and eclipses question ofwomen's rights'.
The maternal-foetal conflict in all spheres of law exhibitsuneasiness between the purportedly liberal approach of ignoring thefoetus and the paternalistic approach of making its interestsparamount. The fundamental issue for this work is to see whether a morerealistic conception over the sentience of the foetus can alter thisbalance and if so what the conception might add to help decision-makerswith the balancing act. In doing this we must have regard to thecurrent position of the law, it is obviously slightly damaging to theabortion debate to characterise it as a purely medical opinion when infact it is a social problem. The sentience of a foetus is argued bysome, as we shall see, to require some sort of moral concern andconsequently more legal protection than the discretion of two doctors.
Sentience of the Foetus
In the last decade there has been increased medical and politicalanalysis of the issue of foetal awareness which 'has led to a reneweddiscussion over whether the developing foetus is capable of being awareof its state and surroundings; and, if so, when in gestation this canoccur' . The Royal College of Obstetricians and Gynaecologists WorkingParty produced a report in October 1997 regarding these issues whichreceived considerable parliamentary scrutiny because of its findingsand the medical research council produced a further report as a knockon from that of the Royal College.
The primary findings of the Royal College's report was that oneimportant point at which a foetus may become aware and be able tocomprehend pain was the moment when 'nerve connections are establishedbetween the cortex and the thalamus in the brain' which according tothe report occurred after 26 weeks of gestation. The Medical ResearchCouncil's (MRC) report started by giving more clarity to this debate inrespect of the fact that there may be considerable ambiguity over whatexactly constituted pain in a medical sense. It is clear that there isa considerable degree of difficulty in establishing what is meant bythe foetus 'feeling' pain . The problem is there may be potentiallythree issues in this debate: It is clear that at an early stage thefoetus may respond in a reflexive manner to external 'tissue damagingstimulation' , Secondly this stage is distinct from the attainment ofconsciousness or awareness which doesn't occur until development of thecortex and thalamus and thirdly this may not be sufficient inestablishing 'pain':
'Much public concern has arisen because of the possibility that afetus may 'feel' pain; such a possibility is founded on the existenceof reflex movements and neural activity produced by sensorystimulation. Despite the usefulness of such reflexes in understandingspinal cord and brain stem pain processing, it would be a mistake toequate them with true pain experience which must involve the cortex anddevelop post-natally along with memory, anxiety and other cognitivebrain functions'
The general tone of both reports exhibits that there is considerabledisagreement over what pain is and whether a foetus can be comprehendedas 'feeling' pain. The issues of defining foetal awareness weresidestepped by the Royal College and whilst it focused on theprevention of undue pain to the foetus it has been criticised because'the maternal distress which may be exacerbated, or relieved, as aconsequence of their recommendations was ignored' . The reports werenot balanced in that sense but the important issue for this work isthat the debate was started by these reports which both agreed thatawareness of pain was a complex phenomena which required more study andthe MRC made the specific point that there 'is no time when we can saypain is suddenly switched on'.
It is clear that the 26 week suggestion by the Royal College isdivisive and certain doctors have suggested that 17 weeks is a morerealistic target. Professor Vivette Glover has suggested that it ismore realistic and that 'given there is a possibility [that a foetuscan feel pain] we should give the foetus the benefit of the doubt' .What has to be realised is that the medical approach isn't so muchconcerned with ethical arguments surrounding whether or not we shouldcarry out abortion rather it's focus is whether anaesthetics ought tobe used at an earlier date as a more humane abortion technique. In thatcontext Professor Glover stated 'after 26 weeks it is quite probable.But between 17 and 26 [weeks] it is increasingly possible that itstarts to feel something and that abortions done in that period oughtto use anaesthesia' . The claim of early sentience is more likely to begiven a wide ambit when we're talking about a humane way to destroy thefoetus because it is worthwhile, as Professor Glover states, to givethe foetus the benefit of the doubt. We have to be careful not toover-emphasise these debates with this difference in focus.
Perhaps one of the most telling aspects of this debate is that therehas been no suggestion that a foetus cannot feel pain at any stage ofthe pregnancy. The issue for this work is whether or not we attach amoral significance to the realisation that a foetus may feel a degreeof pain and whether the concomitant ambiguity has any effect on thatmoral significance. The major caveat to make here is that much of thedialogue on foetal pain or sentience tends to neglect the veryimportant part that maternal suffering plays. In the last section theobvious confusion in the cases perhaps is a reflection to the increasedawareness of foetal pain over the last decade but the dogma of thecourt's don't reflect the concerns raised over a foetus' sentience inthe medical literature.
The Naturalistic Fallacy and the Complexity of Moral Arguments for Foetal Rights
When we attempt to argue that the sentience of the foetus asexemplified by empirical medical studies above somehow gives rise, atthe very least, to the attribution of moral significance to a foetusthen the first hurdle we have to beware of what is known as thenaturalistic fallacy. Abortion is an area in which this mistake isoften made . We cannot simply state that because doctors have proven,to a reasonable satisfaction, that at some point in a pregnancy afoetus may be able to feel pain that this means abortion at this stageis per se immoral. This is because extant substantive facts cannotcreate a moral obligation, the argument that needs to be made out ismore complex than this and were we to limit ourselves to this we wouldbe committing the naturalistic fallacy. It has been noted that thiskind of naturalistic fallacy is commonplace in the abortion debate:
'Foes of abortion propose sufficient conditions for personhood whichfoetuses satisfy, while friends of abortion counter with necessaryconditions for personhood which foetuses lack. But these bothpresuppose that the concept of a person can be captured in a straitjacket of necessary and/or sufficient conditions'
This is an important point to bear in mind when we are answering thequestion of this work. The establishment of foetal sentience hasabsolutely no jurisprudential implications by itself; we cannot saythat because the law chooses to ignore a foetus and afford it littleprotection that it is de facto wrong. There has to be a normativequality to the issue of pain which gives it some kind of moralsignificance large enough to challenge the more liberal conceptionsthat are employed by the law of abortion. In this work we're attemptingto establish in what sense the sentience of a foetus can createimplications for the legal regulation of abortion. This is distinctlydifferent from the normal arguments that surround the abortion debate.
The debate over abortion, as a subset of the maternal-foetalconflict, has tended to polarise into discourses about the 'unbornchild's right to life versus the woman's right to choose. Rights arevery helpful in arguing a case, because if you have a right tosomething, this takes precedence over rival claims' . The debate isconsiderably more complex than this dichotomous picture suggests and'proliferation of poorly-supported rival rights is not progress towardsa solution but rather a symptom of the rigid thinking that blocksprogress' . The sentience of the foetus and it's implications for UKabortion law will be primarily decided by looking at some alternativemoral conceptions to the simple dichotomy. There have been a number ofjurisprudential writers in the last few years which have discussed thematernal-foetal conflict in more complex terms and present us with astarting point for understanding the kinds of debates that surroundregulation of abortion.
Scott has argued, at its heart that the maternal-foetal conflictboils down to an argument about 'when, if ever, a woman has the duty –moral or legal – to accept medical treatment for the foetus' . She seesit very much as an issue that suffers from the contesting factions ofthe subjective rights and the objective duties that are involved in theregulation of this area. She develops her theory from a 'gradualistaccount' of foetal moral status , the idea being the greater the foetusgets the larger the justification required to cause harm to it. Shesees the key to resolving these issues is the attention to a woman'sreason for exercising her right, the way these relate to her underlyinginterests in bodily integrity and in self-determination and to themoral claims of the foetus. The distinction of rights and duties is aconvenient method for Scott to compartmentalise certain difficultconceptual problems and provides an alternative way of dealing with thepolarisation; what Scott is doing in effect is contextualising thedebate.
A classical polemic on the issue of abortion is that of JudithJarvis Thomson and her work on the dimensions of the right to life.Thomson imagined a situation whereby you wake up plugged into a famousviolinist, the doctor knows it was wrong to have hijacked your body inthis fashion and forced you to go through this without consulting youhowever he points out that he cannot now unplug you as to do so wouldkill the violinist but this will only last for nine months. Thomsonasked whether you are morally required to stay plugged into theviolinist. In answering the question the normal person would say thisis outrageous however the doctor points out that the violinists rightto life trumps your lesser right to bodily autonomy. How do wereconcile this? This example highlights that issues surrounding bodilyautonomy are not as straightforward but are in fact multi-faceted.Thomson felt that the way to look at it was to see it as having gaineda special grant where the pregnancy is result of a voluntary actundertaken in full knowledge of the possible consequences; this specialresponsibility is tantamount to a duty owed by her to her foetusthrough which it gains rights to her body.
However, this conception leaves no room for the Good Samaritan; thereis no existence of a duty and correlative right for a person to assistanother person. There may be an 'ought' i.e. an idea that there wouldbe some sort of moral decency attached to the helping act but still noabsolute moral duty, in this scenario if the violinist only needed yourkidneys for an hour then it might be nice, selfless and good that youhelp him but there is no imperative that you must help him. Thomsontherefore sees morality as the respecting of rights, a position thatcan be problematic. Thomson develops this idea about the moral 'ought'in her distinctions between the 'good', 'splendid' and 'minimallydecent' Samaritan. In essence, Thomson holds that you have no duty tobe a Good Samaritan unless you've assumed a special responsibility(e.g. voluntary and planned pregnancy) however where that duty does notexist that might not mean that it is morally appropriate to have anabortion because we further have the duties of the minimally decentSamaritan as members of society. This means where there is a smalllevel of sacrifice it will be inappropriate but not morally wrong tohave an abortion.
Another flaw that Thomson points out with the extreme pro-life positionis the fact that the right to life tends to operate in differing waysas between a foetus and a born child. Therefore the right to lifeusually will entail only negative duties and only very rarely does itinvoke a duty to save life . With regard to the foetus the situation isdifferent because whilst it may be killing to have an abortion it ismore than the normal day-to-day duty of not killing to continue apregnancy to term. It is arguable that in any discourse on abortion wehave to grasp the unique nature of foetal issues, in that they aren'tanalogous to many other situations because they demand use of aperson's body. Thomson also made the very cogent point that even if thefoetal right to life is established then there is a further logicalstep that needs to be made, there needs to be some reason why it iswrong to kill a foetus. The right to life is not transcendent of allother rights but, as English points out , it is contextual. Thereforeif an innocent person is hypnotised into attempting to kill someone itwould not be wrong for the person being attacked to kill his attacker .
If we go back to Thomson she stated that the woman has accepted herresponsibility and thus entailed positive duties not to abort and notto not continue with the pregnancy. Finnis has argued this does notdistinguish enough between special and ordinary duties . She thinkseverything is to do with rights and that special responsibilities alsodepend on grant or assumption. Finnis therefore criticises her forbeing ultimately concerned with what is morally required, rightsbecoming no more than a technical device to delineate the domain andextent of moral requirements. Scott argues that as far as the foetusdebate goes that it is misleading to talk about an ordinary duty tocarry a foetus to term, the duties of a rescuer or a good Samaritanrequire physical risk but they also are usually an action that has beendone before however it is extremely rare that someone will have had achance to have helped someone involving the use of their own body. Theduty in each case is therefore distinctive; the physical risks thatwork in ordinary duties have to be developed in the pregnancy situationto take account of the further issue that it is invasive into the bodyand will therefore involve a degree of pain and discomfort. Thisvalidates extreme fear and worry about invasive surgery; it is this'gap' or 'haze' between ordinary duties and the hypothetical duties ofa pregnant woman that makes this area so difficult. The debate betweenFinnis and Thomson is a stark example of high-level sophisticatedpro-life and pro-choice rhetoric however it is extremely useful for athorough analysis of the problems of the maternal-foetal conflict.
They use very rich analogies such as oak trees, houses and theaforementioned violin-player. The interesting point is that the use ofsuch analogies provides a good way of universalising the debate butinevitably the flaws of such devices are exploited by the other side. Agood example may be the violin player discussed above, Finniscriticised Thomson for not failing to take account of the fact thatwere you to unplug yourself from the violinist then nature would betaking its course rather than an unnatural death . The kind ofdiscourse that these two-writers exhibited highlights the difficulty inarguing for the deference of one right to another. The maternal rightto bodily autonomy and the foetal right to life may be established asmoral components but the way to subordinate or balance the two is farfrom clear.
Maclean has argued that the conflict involves a number ofintersecting concerns: the woman's autonomy and inviolability of body,foetus' right to life and society's interest. The first in that list issupposed to be sacrosanct, see for example Collins v. Wilcock 'Thefundamental principle, plain and incontestable, is that every person'sbody is inviolate'. Thus far the courts have concentrated on the issueof maternal autonomy over foetal right to life, in a very simplisticand straight forward fashion they've failed to take into account theimplications of society's interest in the woman's right to bodilyautonomy. Maclean argued that this might be manifested in the form ofsome sort of civil claim for gross negligence in refusal of a c-sectionor a crime perhaps following the case of Attorney-Generals Reference(No.3 of 1994) .
In looking at all the foregoing arguments by leading writers there isan obvious theme that we can see running through them. They areattempting to find the way to justify their respective positions onabortion. The obvious conclusion seems to be the one that Englishsuggests , we cannot say that abortion is always permissible, nor canwe say it is always impermissible. The abortion decision ought only tobe understood contextually, the factors included in that context areinfinite but classically would include things such as development offoetus, sentience of foetus, reason for abortion, consequences of birthfor the woman and other such sociological factors. The use ofdeontological rights and the distinction between moral duties andgeneral morals is far from clear and whilst it plays the useful role ofuniversalising the debate it doesn't help us solve the problem. Thecontextual approach is a more appropriate model because it can becase-sensitive.
Content of the Moral Conflicts
The temptation in a work such as this is to attempt to answer themore traditional question: 'is sentience of the human foetus aplausible criterion for personhood-for foetal “moral inviolability”,including a foetal right to life?' However, as the foregoingdiscussion has highlighted the appeal to deontological rights seems togo in loops. The almost unique situation of the maternal-foetalconflict means that perhaps appealing to deontological rights is notthe best way of solving the conflict. One of the most eminentjurisprudential scholars, Jeremy Bentham, has suggested a certain moralschema which incorporates the foetal sentience as part of personhoodand giving the foetus moral significance. However, at this point it isfundamental that we outline why this issue of sentience is of suchimportance to the redistribution of the balance between liberalism andpaternalism:
'Were foetuses people... killing them would be murder. Murder, inturn, is the sort of thing that must be regulated by the state. Thus,if there were any question about the foetus's personhood, that questionwould have to be resolved prior to any discussion of the properresolution of the abortion controversy'
This was Dworkin's position when he carried out a large discussion ofthe issues surrounding abortion in Life's Dominion, whilst he rejectedthat a foetus was a person the initial premise may be sound. This isalso understood as the traditional argument. If you establish sentienceand this is held to be a moral component of personhood then ergoabortion is wrong. This work has attempted to take a more sophisticatedapproach and recognise that these issues are not so polarised. We haveto realise that equally cogent arguments about bodily autonomy can bemade in support of abortion and secondly the establishment ofpersonhood doesn't necessarily need to be the criterion that we use toestablish moral relevancy. The fact that a foetus is a person doesn'tmean by itself that abortion is wrong because we don't condemn thekilling of every person for example where it is in self-defence andthis is mirrored by the similar argument on the other side which statesthat if a foetus is not a person that doesn't mean it can be completelyignored.
The last statement needs somewhat of an explanation as it may not beas self-evident as certain other moral claims. Jeremy Bentham advocatedan extreme version of utilitarianism that means we can avoid thepolarisation that arises from characterising the maternal-foetalconflict in terms of the foetus' personhood. The reason for this isthat Bentham advocated that 'all animals who can experience pain andsuffering, pleasure and happiness are of equal moral concern and thatthe proper expression of that moral concern is to minimise sufferingand pain and maximise pleasure and happiness, whether animal or human'. The theory as espoused by Bentham avoids a lot of the rhetoric thatwe saw was caught up in the various arguments over right to life andright to bodily autonomy. The use of a utilitarian calculus is notconcerned with, in fact it could be considered antithetical to,deontological rights of the respective parties in the maternal-foetalconflict. If, as Bentham argued, utility is the maximisation of thegreatest pleasure for the greatest number then it would be irrationalto exclude sentient beings, such as a foetus, which are capable offeeling pain from any hypothetical utility calculus.
This position is not un-complex and despite its obvious applicationto the maternal-foetal conflict and the apparent solution forincorporating the interests of the foetus there are a number ofcriticisms of the approach. Primarily, the sentient argument widens thepotential ambit of organisms that have to be considered in any utilitycalculus . It would to a degree entail us considering the interests ofanimals and such; in fact advocates for animal rights have usedBentham's argument for a long time . Secondly, we have to consider thecontext specific problems with abortion that may demand differentialtreatment. The major issue is that 'the state cannot, however, regulateabortion in the absence of a patriarchal intrusion of the law into awoman's body' . This is the argument that Thomson was attempting toarticulate above. There is very little to be gathered from analogoussituations because generally the right to life entails negative dutiesand not positive duties that involve breach of personal autonomy.
A second issue with using Bentham's argument about utility is a muchmore practical observation. The problem is that in doing the utilitycalculus when one is faced with a mother who wishes to abort thenyou're looking at an inextricable conflict of utility interests.However, who is the correct moral agent to resolve such disputesbecause the only two-options seem to be the mother or some kind ofindependent adjudicator. The practical implications aside there is avery large issue over whether society wishes in the form of anadjudicator to make a call which intromits in a fundamental way on aperson's liberty. The two issues are extremely interlinked howeverthere is a distinction to be made out. The dependant nature of a foetusto a mother is both a problem in terms of deep-seated liberal beliefson the role of the state and also in establishing whether the foetuscan have any moral claim distinct from the wishes of the mother becausesentience is tied up with the concept of individuality.
It should be apparent by the foregoing two sections that discussionsconcerning an extant fact like foetal sentience have extremedifficulties in establishing a change in the legal implications. Theproblem is that if we argue sentience is a fundamental or perhapsdefining component of personhood then we get into the thick of theThomson-Finnis / Pro-Life-Pro-choice arguments. If we try to move awayfrom that dichotomy, which tends to polarise arguments, and argue thatthe mere fact of sentience ought to give rise to moral concern and thusthe foetus ought to be extended a more defined and protected role bythe law then we run the danger of committing the naturalistic fallacyor perhaps worse getting ourselves into the establishment of ameta-narrative which will have problems of it's own. The latter pointis an important issue to be aware of in understanding the difficultiesof accepting the Benthamite position. If we accept that sentiencerequires utility judgements including the interests of the foetus thenwe in turn have to throw in our lot with utilitarianism and animalrights. We then have to deal with not only internal critiques over how,and by whom, that utility judgement is to be performed but also theexternal critiques of utilitarianism as a social philosophy and thevarious critiques of animal rights. Finally, the same arguments thatallowed us to get to a position which allows the foetus moral concerncan be reversed and give some odd results. This is perhaps a littleabstract and an example may exhibit the point.
If we argue that some form of utilitarianism is required for us toadequately avoid the problem of attribution of deontological rights andthe concomitant polarisation of autonomy and right to life. Then whenwe reverse this to make conceptual coherence we have to be able toargue that there is no such thing as a right to life or a right tobodily autonomy. It is unlikely that such arguments in a modern societywhere things such as Human Rights are playing an ever-increasing roleare likely to succeed. The conclusion that one has to take from theforegoing discussion is therefore that the sentience of the foetuscannot be a determinative factor but rather just a contextual factor aswe discussed above.
Moral to Legal Implications
The foregoing discussions have exemplified the difficulties inacknowledging foetal sentience as a moral concern. The reason that thisinvestigation is so important, and it's placement in the context ofwider discourse on abortion is that it gives us a basis to startconsidering the legal implications. However, in order to progress weought to just recap what we have discussed above.
The law as its focus seems to be inconsistent although there is adistinct deference to medical opinion effectively allowing the medicalprofession to annexe the abortion debate to itself. The law whenconfronted by this dispute seems to show an inconsistency betweenprinciples and outcomes. The medical profession seems split over theissue of when a foetus can be considered sentient in any meaningfulmanner but there is a high degree of probability that at some point thefoetus is sentient and able to feel pain. The moral debates surroundingabortion show that the best approach is probably some form ofcontextual understanding which cannot possibly place a premium on therights of the respective parties. The use of the sentience of thefoetus is difficult in establishing any kind of moral force because wecannot say the causation of pain is wrong per se otherwise we committhe naturalistic fallacy. We concluded in the previous sections thatthe problem of attempting to use the sentience of the foetus in anyother way than as a contextual factor is fraught with difficultiesbecause it entails adopting other meta-narratives and in any case theutilitarian calculus might not favour the foetus every time and mayjust dissolve into a similar contextual balancing act as was advocatedby writers such as Scott and English. If we accept that this is thecase then how do we implement these considerations in a legal sense?
There is a well established dialogue which could potentially beapplied to help us comprehend how 'despite being divided over variousmoral, religious and philosophical comprehensive doctrines, liberaldemocratic citizens may nevertheless sustain themselves as apolitically autonomous body politic capable of legitimately usingcoercion to enforce its legal order' . This has been the focus ofnumerous writers notably John Rawls and Jurgen Habermas . Rawlsexplicitly supports the legalisation of abortion and, in the U.S., theright of woman to have an abortion if they wish . This position can bejuxtaposed with other discourses that Rawls espoused; in particular hebelieved that mutual aid was a major natural duty on all members ofsociety. Evers has described the fundamentals of Rawls theory as beingdistinctly in favour of pro-life arguments:
'It seems as if most contractual obligations and possiblesupererogatory good would be overridden by a mother's duty to aid andsupport a fetus dependent upon her for life. It also seems that theduty of mutual respect and the duty not to injure others would prohibitthe abortion of a potential moral person'
Whether intentional or not this contradiction is resolved by Rawls withappeal to the majority principle which he argues makes the liberalapproach to abortion an imperative. He argues that the state regulationof abortion is 'binding on citizens by the majority principle' becausehe believed that 'all reasonable people can be expected to agree' thatabortion in the first trimester was justified. The majority principleis well established in a lot of liberal writing which states that inorder for a society to overcome the potential disagreements between itsindividual members that they have to submit to the wishes of themajority. Furthermore, Rawls argues this is consistent with principlesof justice because he believes in what is known as the principle ofpublic reason. He believed that decision-makers in accordance with themajority principle ought only to use public reasons rather than privatereasons. These public reasons 'derive their force and authority fromsources which citizens may not reasonably reject' . This was opposed tonon-public reasons which could be rejected in a free and open society,for Rawls that principle is liberalism and of primary importance forhim in the abortion debate is that granting the right of abortiondoesn't breach any liberal principles but also doesn't negate theminority who wish not to exercise that right. He specifically endorsesthe approach in Roe v. Wade which appeals to fundamental liberalconstitutional powers that give the woman the right to choose whetherto have an abortion.
The force of a Rawlsian approach to abortion is undeniable, if as wehave seen there are intractable differences on a subject matter but amajority supports a certain position then the majority principle in ademocracy ought to apply. Furthermore, it questions whether it is thelaw's place to decide on the moral issues of abortion or to regulate itto any extent. The sentience of a foetus and its ability to feel painare important points but it is difficult when placed in the middle ofall these intersecting concerns to see whether it should lead to anylegal change of position. There are significant doubts over theRawlsian approach and whether the public / non-public reason divide isrational or obvious some have argued that one cannot decide on how youshould regulate abortion without coming to a conclusion on the moralstatus of the foetus . This is intuitive if we look at the theoryunderpinning the liberal principles supporting abortion: we are forcedto accept that the state ought not to intervene in bodily autonomyunless there are significant counter balances and that these counterbalances in abortion increase in a gradualist type manner. Thatpre-supposes there is a way of doing the balancing act which inevitablymay require appeal to non-public reasons. The legal implications arethus complicated because it is unclear whether the divide betweenpublic reasons and non-public reasons is an analytical tool which givesus the correct answer on how to deal with the contextual nature ofabortion or merely a façade that hides appeal to specificallypro-choice non-public reasons. The importance of liberal thinking onlaw gives pro-choice that extra stamp of approval however pro-lifearguments can be portrayed as valid but of a more subjective naturethat denies them any kind of moral force on the direction of legalregulation.
The moral position of the foetus is contentious and this is mirroredby an equally contentious debate over how the law should regulateabortion. The legal implications of establishing the sentience of afoetus are seemingly somewhat insignificant. The problem is that theissue of abortion and the maternal-foetal conflict is the locus of somany intersecting concerns that it is impossible to say that foetalsentience ought to be determinative in any fashion. It certainly lendsweight to a gradualist account of foetal rights that accords rights toa foetus at an earlier stage than the law currently reflects. Theestablishment of foetal sentience is an important stage in thecontextual judgement of whether abortion is morally justifiable or nothowever the legal position is more complex. The concern for the law isnot only, or perhaps arguably not at all, the moral status of thefoetus but also how the law ought to regulate that moral debate. Lawand morals are distinct and there are intervening concerns which lessenthe effect of foetal sentience in legal regulation.
What the foregoing discussion highlights is that the law in the UKis failing to engage in this debate. It is undoubtedly a social problemand not only a medical problem because it is the locus of so manysocial concerns, in that sense we should not be leaving the decision upto the discretion of the doctors. The law ought to be more involved inabortion as it is in America and Canada because of the role of law insociety. The position that the law ought to take on the balance in thematernal-foetal conflict is extremely difficult. However, if the lawcan recognise that the abortion issue is contextual and that there isno universal answer then I believe that foetal sentience could provideus with a logical transfer of onus. The establishment that a foetus issentient and able to feel adds an extra dimension to the typicalpro-choice / pro-life arguments and would favour extension of moreprotection to the foetus from that point onwards. This work cannotpossibly hope to answer all the complexities of abortion and the onlyconclusion that can be drawn from the foregoing is that the foetus hassome moral claim as does the mother and that sentience is but onefactor in the balancing act.
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