Between public policy and private morality: a bioethical analysis of abortion and legislative reform/Entre la politica publica y la moralidad privada: un analisis bioetico del aborto y la reforma legislativa/Entre politique publique et morale privee: une analyse bioethique de uavortement et la reforme legislative.
This article elaborates on some important concepts in the matter of abortion, the issue of revelant legislation, and ends with pertinent recommendations. Adopting a bioethical perspective, the paper addresses the relevant issues and perspectives on abortion and argues for clarity of concepts and understanding of the context in which a woman is pregnant and considers abortion. Taking the reader through the differences between private and public morality, and showing that the decision whether or not to terminate a pregnancy involves personal values, deliberations, and the dictates of private conscience- all areas of personal morality - the paper argues for clarity rather than confusion in matters of public policy. It concludes with a discussion on the ethics involved in making sound public policy which considers the long-term consequences of actions.
El presente articulo elabora sobre algunos conceptos importantes en materia de aborto, el asunto de la legislacion, y concluye con las recomendaciones pertinentes. Adoptando una perspectiva bioetica, el trabajo discute asuntos y perspectivas relevantes sobre el aborto, argumentando en pos de una mayor claridad sobre los conceptos y la comprension del contexto en el cual una mujer queda embarazada y considera el aborto. Llevando al lector a traves de las diferencias entre la moralidad privada y publica, y mostrando que la decision de abortar o no, involucra valores personales, asi como las deliberaciones y los dictados de la conciencia privada--todas las areas de la moralidad personal, el trabajo arguye que es mas necesaria una claridad que una confusion en asuntos de politica publica. El trabajo concluye con una discusion sobre los factores eticos involucrados en el disefio de una politica publica solida que tome en consideracion las consecuencias a largo plazo de las acciones.
Cet article developpe certains concepts importants en matiere d'avortement et de legislation et conclut en offrant des recommandations pertinentes. Par le biais d'une perspective bioethique, l'article traite les questions et perspectives pertinentes au sujet de l'avortement, prenant parti pour une clarte conceptuelle et la comprehension du contexte dans lequel une femme enceinte envisage d'avorter. En amenant le lecteur sur le terrain des differences entre la morale d'ordre prive et la morale publique, et montrant que le decision de mettre fin ou pas a une grossesse implique des valeurs et des deliberations personnelles, la voix de la conscience--toutes relevant de la morale personnelle, l'article se prononce en faveur de la clarte au lieu de la confusion en matiere de politique publique. Il se termine sur une discussion des considerations ethiques entrant en jeu dans lelaboration de politiques publiques saines qui prennent en compte les consequences a long terme des actes.
Abortion still illegal in the Caribbean
In Jamaica and many other parts of the Caribbean, induced abortions continue to occur despite the historic legal, moral and religious taboos against them. Over the past 30 years, most developed countries and many less developed countries (including Barbados, Guyana and many Eastern European countries) have either legislated or enacted laws through the courts which have permitted abortion under specified circumstances (Warnock 2004, 78; Etzioni 1994, 42; English 1994, 115; Walrond 2005, 3, 48, 52, 132). The criteria have generally included medical indications as well as social and economic reasons (Jonsen, Veatch, and Walters 1998, 396; Walrond 2005, 3, 90). Despite these advances in legislation in those states, however, emotions still run very high on the issue of abortion (Munson 1992, 54; Walrond 2005, 3). This article examines three different perspectives on abortion, and after an ethical analysis of each, recommends the most comprehensive framework within which the matter should be evaluated.
DIFFERENT PERSPECTIVES ON ABORTION
The scope of arguments for and against abortion tends to be narrower or broader depending on the way the issue is framed, but may be fitted into three frameworks of analysis:
1) Foetus-centred focuses exclusively on the presumed personhood of the foetus and its right to life;
2) Competing rights focuses on the rights of the mother in competition with the presumed rights of the foetus;
3) Contextual focuses on the mother and the foetus as an interactional unit, within the context of a broader network of relationships.
"Principlists" strongly believe in the principle of the sanctity of life,; others support the idea of liberal individualism, which prescribes freedom for the individual to pursue his or her daily endeavours without interference from the state or other persons. "Consequentialists" tend to make decisions based on very detailed considerations of the consequences of the various possible courses of action. It is against this diversity in Caribbean society that discussions surrounding the termination of an unwanted pregnancy occur, and where the opinions and positions proffered generally reflect the personal morality, religious beliefs and ethical theories to which opinion-givers (and makers) subscribe. This pluralism in society requires that all opinions be respected, but that the making of public policy should be a composite of the opinions and positions which will have the least harmful long-term consequences for society.
The foetus-centred framework
In this approach, the foetus is the centre of the moral inquiry, the mother (and the father obviously) is excluded from any consideration, and arguments are raised from the presumption that every human being has a right to life. For clarity, the reader should be aware of the following terms:
Pre-embryo: The cells of conception before they are implanted
Embryo: The products of conception which grow until all principal organs are formed, usually by about the eighth week of pregnancy
Foetus: The products of conception during later development, from the eighth week onward
Life: A biological concept having to do with the ability to function and grow to maturity
Person: A philosophical concept, similar to the phrase "human being", indicating a distinctive identity of man, woman, or child
Age of viability: This is set by the World Health Organization (WHO) at a minimum of 22 weeks of gestation, this being an imprecise point along a continuum of foetal development where survival outside of the womb is possible. This physiological limit seems probable due to the lack of functional capacity of the lungs before that time (English 1994, 116)
The arguments opposing abortion have traditionally rested on three premises:
1) That an embryo possesses humanity from the moment of conception;
2) That every human being has a right to life;
3) Therefore, once conceived, the embryo has a right to life.
Some moralists and theologians have traditionally adopted this approach, although their opponents have questioned the exact time of hominization, the point at which a developing embryo becomes a human being. Opponents have argued that theology has not always taught that hominization is immediate at conception, since before the pronouncements of Pius IX in 1869 in the Catholic Church (less than 150 years ago), most theologians taught that the foetus did not become a human being with a human soul until at least forty days after conception (Jonsen 2000, 79, 141-2). Similar to this, the English common law view that abortion should be considered criminal only after 'quickening' also prevailed in the USA at the time (Jonsen 2000, 78). Consequently, terminations of pregnancies done before that time were not thought to involve the taking of human life. To this day, a strong minority of theologians in some countries and many religious groups worldwide believe that abortion is permissible in the early stages of pregnancy, and that any absolute ban on abortion is based on faulty theology (English 1994, 118; Mahowald 1990, 28).
The doctrine of hylomorphism (essential to Christian dogma) defines human beings as a unity of body and soul, rather than as a 'potential' that is inherent in a developing body that will eventually gain a human soul. Consequently, can there be a human soul existing in a less than fully formed human body? Is there a fully human body before the organs form by the eighth week of pregnancy, before the nervous system develops and before the sexes are differentiated? Some persons argue that in modern practice, theologians do not always hold to the doctrine of immediate hominization since they do not practise foetal baptism for all cases of miscarriages, and rarely perform baptism or a funeral mass even when a full-term baby is stillborn. By this inaction, the theologians would seem to make a distinction between the potential human being represented in the developing foetus, and the actual human being which the foetus eventually becomes.
The Roman Catholic Church teaches that any act which intends to separate sexual union from procreation is sinful, but this view is divergent with those of the majority of Jamaicans and other persons of the Caribbean who have sexual relations without wishing to conceive a child. Many persons believe that a woman should assert her sexuality as a part of a total loving relationship, and not merely as a procreative duty.
While some (not many) supporters of the foetus-centred approach have examined the consequences of unwanted pregnancies, their suggested solutions have been criticised as being impractical and incomplete in the current context. The suggestion that mothers of unwanted pregnancies carry them to term and then give the children up for adoption is deemed faulty in many ways. First, the suggestion is insensitive to these women whose bodies undergo severe and sometimes permanent alterations, with attendant psychological distress (anguish, anxiety, and depression) in many instances. The burdens to be borne are great. Next, they do not suggest how the financial costs associated with health care and support of the pregnancy and the mother during the gestational period and beyond should be met.
Further, these persons do not address the small but significant risk of morbidity and mortality that attends every mother attempting to deliver a pregnancy, or the possibility of puerperal illnesses that occur in the post-delivery period. Finally, the suggestion that the baby at delivery be offered for adoption appears impractical in the Jamaican context, where many young children are currently in children's homes with no offer for or prospect of their adoption. These numbers would be perhaps exponentially increased by the delivery of more unwanted babies, putting further strain on the already overstretched public purse and further increasing the emotional stress and physical misery that many children suffer in these homes.
The foetus-centred approach to the issue of the termination of an unwanted pregnancy is therefore monolithic in its deliberation of the matter, and is incomplete since it does not give any fair consideration to the particular experience of the mother or other persons likely affected by the conception.
The competing rights framework
The discussion here is whether the foetus's claim to life is an absolute one which must always override the interests of its mother. However, some scholars challenge the notion of the very early foetus having any 'right' to life (Warnock 2004, 82, 85; English 1994, 115). The argument is that the early foetus is totally dependent on the mother-to-be, who has an established status and rights to privacy and non-interference (in the same way that men and non-pregnant women do). The status of the foetus is the weaker of the two, as it requires nurturing to viability and delivery at term (English 1994, 118). Therefore, assuming that its moral status is not equal to that of its mother, then the rights of the foetus must be subjugated to hers.
This notwithstanding, the fundamental point may be that the foetus's right to life consists of a right not to be killed unjustly, and hence abortion is neither always permissible nor always impermissible (Munson 1992, 72). The reason for having the termination of pregnancy may be a morally relevant consideration because it bears upon the issue of whether the termination is justifiable. In the case of rape, the woman has not volunteered to become pregnant, and so one may argue that her right to control her body should override the foetus's right to life. However, should some beings be considered to have less right to life than others, depending on the circumstances under which they came into existence? In the case of rape, it may be argued that the abortion of a foetus so conceived is not immoral because the foetus has no valid claim to use the woman's body.
Generally, concession is also made that a woman may exercise her right to terminate a pregnancy in circumstances where her life is in danger, and therefore persons in authority and those obligated to secure people's rights and health may accede to a woman's request for an abortion (Walrond 2005, 90, 108). However, where the woman indulges in intercourse, knowing it may result in pregnancy, and then she does become pregnant, one may argue that the woman is at least partly responsible for the presence of the foetus. The foetus may have a right not to be terminated in these circumstances, as to do so would be unjust (Munson 1992, 77). This issue would seem to turn on the 'voluntariness' of the occasion, and whether women dependent on their spouses may be regarded as autonomous (self-determining). Certainly, some argue, nobody should be morally required to make large sacrifices of health, of other duties, commitments, and interests and concerns for nine months unless fully wishing to do so (Elliott 1999, xxv).
The pitfall of this approach is that it assumes an adversarial relationship between woman and foetus, which may not reflect the actual experience of women faced with the difficult choice of terminating a pregnancy.
The contextual framework
This approach extends the scope of relevant considerations in this matter to relationships other than that of simply the foetus and the mother. It includes the network of issues surrounding the direct parent-child relationship, including those between parents, grandparents and children; between casual or life partners, and between siblings. Included in this network also are the relationships between women and men in society, and institutions to be found in a particular society.
When discussions about termination of pregnancies occur within this wider context in a society, there may be a number of compelling reasons that may justly influence the decision to end a pregnancy, such as violence, illness, poverty, financial dependence on someone else, addiction to harmful substances, discrimination, and responsibility to others. Further, in this contextual approach, there may be a range of cultural and political factors which militate against women controlling their sexuality (and hence we should not automatically assume that they had voluntarily assumed the risk associated with sexual intercourse). The matter of incest connotes issues of violence, the probability of birth defects, and risk of HIV infection. Sexual coercion (regarded by some persons as prevalent rape), the price of continued goodwill in emotionally or physically violent relationships, acceptance, survival, peace, popularity, fear of emotional rejection, compliance, and sensitivity to the demands of others may all factor along the path leading to a decision to end a pregnancy (or not). The age and competence of the pregnant woman are also relevant here, as pregnancy and delivery are more hazardous for adolescent mothers, and pregnancy tends to limit their full development into mature, educated persons (English 1994, 118). The probability of an adolescent mother dropping out of an academic education is very high, with attendant social consequences. Further, the younger the pregnant woman, the greater problems exist with issues of informed consent.
The reality is that pregnancy involves significant physical, emotional, social and economic challenges for women, and it should not be regarded simply as a tolerable burden (Munson 1992, 57). In this contextual framework, therefore, the woman is placed at the centre of the decision-making process to balance the interests of all the beings affected by her decision. While the interests of the father are important and as someone affected he should be consulted, common practice, affirmed by legal precedents in some states, has granted women the primary responsibility for pregnancy decisions. The foetus has a unique physical status within and is dependent on its mother and so features highly in this framework, but its rights are relational rather than absolute.
THE MATTER OF PUBLIC MORALITY
For completeness, there is a need to distinguish between public morality and private morality. Although there is an interrelation, private morality constitutes the dictates of one's conscience, while public morality is that which is democratically acceptable and widely seen to be decent. A private person may speak intuitively about something she or he finds disgusting, and may conclude that the act is wrong. That person makes a false assumption if she or he concludes that, because she or he judges that act to be wrong, then this should translate into a law which should govern everyone, and turn that which she or he is objecting to into a criminal offence (Warnock 2004, 25). They are entitled to make decisions that guide their own lives, but should specifically exercise reason and caution in attempting to foresee the consequences for everyone--including minority groups--of the measures they are proposing. The field of public morality and subsequent public policy is thus distinct from private conscience.
Public policy must be rational and should consider the long-term consequences of actions; society needs steady and principled government where principles and the consequences for society as a whole are openly taken into account (Warnock 2004, 26). So while a private person may personally resign over a conscience issue, public morality should be determined and explained with reference to a common good.
In determining public policy or public morality, legislation must be broadly utilitarian in outlook (Warnock 2004, 81). In other words, a government hoping to introduce legislation must primarily have regard to the weight of benefits over harms to people at large. There may be numerous vested interests involved, but in trying to decide what it would be best to do, legislators must be consequentialists. They must foresee as far as they can who will benefit from the new law, and who will suffer, and to what extent. In such calculations, each member of society should count for one, and no one should be given special consideration, despite the lobbying of special interest groups.
It is important not confuse private morality with public morality. In public issues where there is a radical difference of moral opinion, and where no compromise is possible, the concept of what is 'acceptable' becomes a useful if not an indispensable pathway (Elliott 1999, 152-3). Such legislation may not fully satisfy all those who hold that all human life is sacred, but the outcome should be one that people can live with, where persons are entitled to refuse individually to have anything to do with abortion despite it being legally permissible, and may continue to form pressure groups to influence the opinions of others. Certainly, legislation that permits termination of pregnancies under specified circumstances could help to protect the health and welfare of women in particular. In the area of public morality, the concept of the 'acceptable' is necessary in that it may set the best goal possible in the circumstances.
THE CONCEPT OF MORAL STATUS
It can be seen from the foregoing that many persons believe that ah embryo or foetus is not yet a 'person', and hence the general prohibition against the taking of human life should not be erroneously extrapolated to decide on this matter (Elliott 1999, 159). For many persons, the concept of a 'person' connotes the capacity for sentience - a capacity to 'feel' or 'sense' pleasure or pain, even if at the time the person is unable to feel (being unconscious, of having lost the capacity in some way). A 'person' is a type of being about whom we have certain moral attitudes and towards whom one ought to behave in certain ways. So when the word person is used, it used to refer to human beings whom we must generally treat in certain ways (Elliott 1999, 160). These ethical obligations are clear, as well as historically accepted. Persons are beings whom we generally cannot justifiably kill, lie to, steal from, and so on.
The notion of 'rights' ought not to be accorded to a fertilised egg simply because it has a 'potential' to become a 'person' at some later time, many scholars argue (Gorovitz 1992, 124). It is a fact that an unfertilised human egg, like an embryo, has the potential to become a person also if all goes well--if it gets fertilised by a human sperm. Yet no one has argued for according an unfertilised egg or spermatozoon personhood or a right to life. By this measure, 'potentiality' for human development in and of itself cannot invoke 'rights' or equal moral status with that of a fully formed or developed human being.
The so-called moment of conception is nota specific instant but a process of time. For those who believe in hominization (the formation of a human being) at conception, is the human being formed the moment when the spermatozoon penetrates the outer covering of the female egg to become 'one' unit, or further on in time when its nucleus joins with the nucleus of the female egg, or further on when its chromosomes begin to 'pair' with the chromosomes of the female nucleus? On this notion, where one draws the line may be problematic for some who believe in hominization at conception. What happens if we are not able to follow the process under the microscope? Prior to the advent of microscopic lenses 250 years ago, we were not cognizant of this process. With the new knowledge that science brought, were the theological prescriptions changed?
For many individuals who do not totally reject the notion of abortion, the duration of the pregnancy (gestation) is important. As development progresses with the onset of brain activity at about eight weeks and foetal sentience (the ability to feel/sense) beginning during the second trimester (13-28 weeks of pregnancy), some persons have increased difficulty in justifying the termination of a pregnancy (English 1994, 118). Hence many persons have a strong belief that terminating a pregnancy early, say within the first 12 weeks of a pregnancy, is safer to carry out and less morally objectionable than a late abortion carried out when the foetus is almost fully formed, or where it may be capable of being born alive, say at 23 or 24 weeks of life (Warnock 2004, 79).
Many persons adopt a gradualist or developmental view of the moral status that is accorded to human embryos and foetuses. The further along the path towards being born a foetus has progressed, the more protection it should have from being destroyed, and the more urgent the reason for an abortion needs to be (for example, a woman's life is at stake). The context within which the pregnancy occurs is also particularly relevant to this deliberation, and mothers should be emotionally supported rather than coerced during their deliberation.
The decision whether or not to terminate a pregnancy should therefore be left to individual moral conscience and personal contextual issues, and the general prohibition against abortion should be lifted by those Caribbean states that still maintain the legislation. Fairness to individuals dictates that legal moralism should not playa role in so personal and individualistic a matter (Etzioni 1994, 81). Further, social policy and public morality should recognise that termination of pregnancies have occurred, and will always occur for many reasons (Wamock 2004, 78). Hence public policy must aim to ensure that if and when a termination of pregnancy occurs, there is as little physical or emotional damage or 'scarring' of women as possible (i.e. no "back-street abortions'), and such policy should be governed by a regulation that is acceptable to persons from all sectors of society.
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