Abortion: A Reply

Featured image courtesy Peter Muhly/Getty Images

SANJAYAN RAJASINGHAM-on 10/07/2017

In an article a few weeks ago, I argued that an embryo is a person with dignity and
rights, and that this must change how we see both abortion and pregnancy. There
were several responses, with questions about personhood, the right to life, the
duty to support others, and feminist analyses of the law. This is a reply.

Embryology, the Right to Life and the Quality of Life

Embryology is messy. But there is nothing subjective about three facts: an embryo
is a human organism; it is functionally separate from its mother and father; it is
self-integrated and directed towards its development and maturity. It is therefore
a whole, complete and distinct though immature organism.[1] This is the basis
of its personhood.

But assuming an embryo is a person, should it have the same moral standing as
an established member of society? The implications of saying no are
tremendous. What, after all, does established mean? Would an elderly person
who has lost her family, or an orphan, count? What about an embryo whose
parents are already emotionally attached to it? Also, if being less established gives
us less moral standing, then what is to prevent being more established giving
us more moral standing?

What about when the right to life of the embryo conflicts with the quality of life
of the mother? The right to life is simply a way of acknowledging that the life of
persons is important. It is protected by law, and this protection is only lifted in
exceptional situations. For instance, war and self-defence, cases of life against life.
We also recognise that mere existence is not enough quality of life is also
important. Socio-economic rights, including education and healthcare, do not
resuscitate orders and (in some countries) voluntary euthanasia, which allow
people to decide how they end their lives, are all based on this.

But when discussing conflicts between these two values, theres an important
distinction to keep in mind. Do not resuscitate orders and voluntary euthanasia
are about my deciding that my quality of life is more important than my mere
existence. They are not about my deciding that my quality of life is more
important than someone elses existence. Whatever we think of decisions to end
our own lives based on our quality of life, there is consensus on this: I cannot
kill someone else because it will make my life more meaningful or give me more
autonomy. We may sympathise with the mother who kills her infant because she
cannot afford to raise him. But we do not say that parents may kill their children
when this improves their quality of life. Personhood radically alters our freedom
to seek a good life.

Abortion and Organ Donation

Are laws against abortion analogous to forced organ donation? The State doesnt
force us to support other persons by donating our organs to them. So even if an
embryo is a person with dignity and rights, why should the State force a woman
to rent out her body to support a foetus in her womb?
The analogy sounds compelling, but it doesnt capture what happens with
abortion. Why? Because there is a moral difference between doing and
allowing harm. If an Olympic swimmer sees a man drowning in a nearby pool,
its one thing for him to decide to walk away. Its completely another for him to
jump in and hold the man under water until he drowns. The first, allowing harm
might be bad, but the second, doing harm is far worse.

Refusing to donate my organs, an omission, is to allow harm, rather like the

swimmer who ignores the drowning man. The person who needs those organs
may die, just as the man may drown. But aborting an embryo is different. It
involves actively doing harm killing the embryo by tearing it apart. This is in a
different category altogether. Regardless of whether States can force us to help
others, they certainly can prevent us from killing others. The organ donation
analogy is unconvincing because, at its best, it shows that a woman may refuse to
support the foetus, for instance by refusing to take any precautions about diet,
substance abuse and physical activity. It doesnt go to show that she may kill it.

Abortion as Unintentional Killing

But is abortion not primarily about killing? Some argue instead that its the only
effective way of refusing to support an embryo. Anything short of this and the
embryo is still in the womans body, drawing nutrition from her. Abortion, then, is
an eviction, an act by which a woman refuses to support an embryo. On this
analysis, the primary aim of abortion is to refuse support. The secondary and
unintended (though foreseen) consequence of this refusal, is the death of the
foetus. In philosophical terms: abortion is a form of unintentional killing.

This is a valid distinction. It doesnt apply to many cases of abortion though.

People choose to abort for various reasons and for many the death of the embryo
is precisely the aim of an abortion. It is about getting rid of a problem whether
this be pregnancy or parenthood or the trauma of giving a child up for adoption.
Yet what about those limited cases where abortion is about a refusal of support,
where the death of the foetus is the inevitable, though unintended, consequence
of this refusal?

Its far from clear that this would justify killing a person. Imagine an elderly, senile
father of an adult child. He is disruptive, causes huge medical expenses and is an
emotional and physical drain. His adult son decides that he cannot support him
and decides to send him to an elders home. Yet his father is so disruptive that no
elders home will take him. He tries to abandon him, but his parent finds his way
home. His aim is to free himself of his duty of support and it seems like killing
his father is the only effective way to do this. Yet we would say his decision to
unintentionally kill, was wrong.

Duties of Support and Consent

The more fundamental question is: how do duties of support arise? Those who
see abortion as a way of refusing a duty of support, argue that moral (and legal)
duties to support others only arise if we voluntarily consent to them. Since the
mother only consented to intercourse, not to pregnancy, she has no duty to
support the child and may freely evict it from her womb.

But do these duties only arise by consent? Consider again the Olympic swimmer
and the man drowning in the pool. Its true that in Sri Lanka the swimmer has
no legal obligation to save the drowning man. Its also true that his deciding not
to act isnt as bad as jumping in and killing the man. But if we were watching this
scene from a distance, would we really say he had no moralobligation to help?
Most of us would say he did. This duty isnt the result of consent its the result
of chance, proximity, and a capacity to swim. Special relationships can also create
these duties. We have no choice about accepting help and support from our
parents when they raise us, but we still live as if this creates an obligation to
support them in turn. We dont choose our siblings but feel, merely because they
are our siblings, that we have a duty to help them.

Now these are moral, not legal, obligations. But they show us that we live as if we
have moral obligations to support others even where we dont voluntarily consent
to them. Proximity to those who are powerless, a capacity to help, a special
relationship or a combination of these can ground obligations of support just as
consent can.

But abortion is about the coercive power of the law. Should the State
impose legal obligations of support on us without our consent? Doing this isnt a
new idea. For example, in countries such as France, Germany, Belgium, Spain and
Switzerland, all firmly committed to individual freedom and autonomy, there are
duty to rescue laws which can be used to punish an Olympic swimmer, or even
an average one, for ignoring a stranger drowning in a nearby pool. All
governments force their citizens to pay direct taxation, forcing them to give up
the fruits of their labour for the sake of others.

Military service in places like Norway, Brazil and Switzerland forces citizens to
give up months, even years of their lives for the security of their community.
These duties arise by birth, not by choice, and opting out is costly in the former
you must keep your income low, in the latter you may need to leave the country.
The law just doesnt see us as unencumbered selves, only incurring
responsibilities when we voluntarily consent to them.

A Legal Duty of Support

But should the law insist on a duty of support in the limited cases where abortion
is about refusing that duty? Yes, for two reasons. First, the relationship between
an embryo and its mother is characterised by extreme vulnerability, proximity, a
capacity for support, a lack of agency (for the embryo), and limited time. Where
support causes physical or mental harm that threatens the life of the mother, it
should end. But if not, it is analogous with other instances of legal (and moral)
duties of support, to insist that it be provided.

Second, the reason for refusals of support is often the nature of pregnancy and
parenthood. These include significant physical, emotional and physiological
changes for the mother, and restrictions on both parents autonomy, should they
choose to raise the child. But the act of refusing support (abortion) causes a far
greater harm to the embryo. The life-long costs of pregnancy, however severe,
are in a different category altogether from death, the extinction of a person. The
law should allow a lesser harm if this will prevent a greater one.

All of this, of course, is irrelevant to the many (perhaps the majority) of cases
where abortion aims to kill the embryo. It only applies to the limited cases where
this is not its primary object. And even here, there are good reasons for the law to
impose a duty of support.

Feminist Perspectives

These disagreements about abortion are important because our convictions

about personhood shape how we treat others, especially those who are
powerless and vulnerable. Yet we must also face the lived-reality of women in Sri
Lanka. Studies suggest that scores of abortions happen every day. A safe abortion
(euphemised as womb washing or a D & C) costs about Rs. 50 000. Less safe?
Rs. 10 000. Those who cant even afford this are the ones who end up dying on
hospital beds.

Feminist analyses of the law rightly locate abortion laws in a patriarchal, colonial,
legal legacy. And they are right that most of the opposition to liberalising the law
in Sri Lanka today is precisely about controlling women. These laws are just one
part of a system that privileges the male in private, in public, at work and in
government, in theology and in epistemology. Men need to have the humility to
listen to these critiques, be changed by them, and act on them.

But these perspectives must also face critical scrutiny. It is possible to accept the
patriarchal origin of laws against abortion, and yet see that they also protect
something of value another human person. Abortion is not just about the
health rights, or reproductive rights of women. It involves another person, and it
is a basic, uncontroversial, principle of law and morality that our rights may be
restricted to protect the right of another to live.

More importantly, much of feminist thought is grounded in the moral reality that
women are equal in dignity and rights. Yet arguing against the personhood of an
embryo based on its appearance, its connection to society, or its capacities
(essentially saying that dignity and rights depends on these things)
undermines all claims to equality, including feminist claims. Women easily
become the less established, the voiceless, the foreign, the different in a
patriarchal society, and these same arguments can be used against them. And if
feminism identifies with those who are weak or different, why does this
concern not extend to humans at the most vulnerable stage of development?

Finally, if an embryo is not a person, on what basis would feminist groups oppose
female foeticide? This is the phenomenon of selectively aborting female
embryos in societies where boy-children are preferred to girls (due to dowry
requirements and religious beliefs). It is certainly possible in Sri Lanka. If an
embryo is a person, opposing this makes sense. But if not? Why care about the
death of a clump of cells? If the reason is their sex, isnt thatdiscriminatory?

Conclusion: Pro-life?

Focusing solely on the woman is as insufficient as focusing solely on the embryo.

If the former describes some feminist analyses, the latter describes most of the
so-called pro-life movement. The name pro-life conjures up images of white
American Christians, inordinately concerned about unborn lives killed by abortion,
but completely unconcerned about black lives killed by structural racism or
Pakistani lives killed by American drones. And this isnt just an American disease.
Disturbed by lives destroyed in the womb by abortion, but apathetic about lives
destroyed outside of it by economic and social structures, protective of women
during pregnancy, but enabling the personal and structural violence and abuse
they face every day many Sri Lankans, religious or not, are the same.

Those who are genuinely pro-life need to hold together both the need to
liberate women (and men) from patriarchy and the need to protect the life of the
embryo. They must be committed both to the autonomy of women and the life of
the embryo. There is no dichotomy here. These are not mutually exclusive aims.

How can this be done? First, by removing any criminal sanctions against women
who seek abortions. This respects the right to life of a foetus by maintaining the
laws normative force and keeping the status quo for providers. Yet it also
recognises that women are often driven to abortion by patriarchal structures. It
can prevent maternal deaths, since the fear or prosecution is what keeps most
women away from hospital after an unsafe abortion until its too late.

Second, by resisting the patriarchal notion that the sole responsibility of bearing
and raising a child should be on the woman. Paternity leave, with incentives for its
use, is one measure there are many others. Finally, a consistent view of an
embryo as a person means that the State must support women and families who
are unable to support a child. If society wants the embryo to live, it must bear
part of the burden of life. These measures will cost but so do highways and
megapoleis. Cost will not be a problem if there is significant social support for
these measures.

In the final analysis, abortion is the intentional killing of a person and we ignore
this at our societys peril. But so long as pro-life is simply about opposing
abortion and nothing else, laws against abortion are rightly described as
patriarchal instruments to keep women in their place. A shift from this, to one
which respects all life, requires a reimagination of pro-life and all its
implications. This is where the debate needs to go.

(My thanks to everyone who contributed to this article through their comments
and criticisms. Ive also drawn heavily on the work of Robert George, Patrick Lee
and Christopher Tollefsen. The responsibility for any errors, of course, is mine).

Editors note: Also read The Abortion Debate: Mismatched and Misplaced?, The
Abortion Debate: The Absence of Questions. Abortion, Women and
Personhood Let Women Decide: Some Feminist Perspectives on the Abortion
Debate The Abortion Debate: Widening the Discussion and A womb of ones
own: Life, Abortion and motherhood in Sri Lanka on the same issue, published
recently on Groundviews.

[1] Robert George and Christopher Tollefsen provide a comprehensive analysis of

this in Embryo: A Defense of Human Life (Doubleday 2008). For a critical review by
William Saletan see Book Review: Embryo: A Defense of Human Life New York
Times 10 February 2008
<http://www.nytimes.com/2008/02/10/books/review/Saletan-t.html?mcubz=0>,
for a reply from George and Tollefsen, see Embryonic Debate National
Review 11 February 2008
<http://www.nationalreview.com/article/223640/embryonic-debate-robert-p-
george-christopher-tollefsen>, and for a final reply by Saletan, see The Machine
of a New Soul Slate13 February 2008
<http://www.slate.com/articles/health_and_science/human_nature/2008/02/the
_machine_of_a_new_soul.html>.
Posted by Thavam