Abortion, women and personhood

By Sanjayan Rajasingham

The Government’s plans to liberalise Sri Lanka’s abortion laws has polarised public opinion. Abortion is either supported as a natural extension of a woman’s autonomy and right to choose, or is opposed as legalised murder. But is there a path beyond the legalise vs criminalise debate?

Dominance and choice

Support for abortion is founded on women’s dignity, rights and choice1 – things that many Sri Lankan women are denied each day. They face constant harassment on the bus and the streets. They are the victims of startling levels of domestic violence and abuse. They are constrained about what they can say, wear and do. They are also denied a voice in political, religious and legal institutions. These experiences of women are rooted in a system of male dominance – a system which allows men to police and control the everyday lives and choices of many women.

In a male-dominated reality, allowing women to choose to abort seems a positive step. A pregnancy radically alters her life. If it is outside marriage it leads to exclusion and humiliation. If it is the result of rape or incest, the consequences are worse. How can the law force a woman to go through this?

This question cannot be ignored, especially by men, who are removed from these experiences of domination. Society doesn’t force us through daily, casual, harassment. It will (wrongly) excuse us of most of the burden of raising a child. Of course, those who are removed from a situation don’t necessarily need to be silent – the elderly can share their views on public policy decisions that will outlast them, and those with no chance of higher education can comment on tertiary education. What we do expect, however, is that they listen deeply to both sides, and are open to being changed by hearing from those who are most affected. 

Abortion and personhood

The argument of many opponents of abortion is: “My religion says abortion is wrong, so it must be illegal.” While religion has its place in public discourse, this is not it. It cannot be a “knock down” argument for or against a law. In fact, however, I don’t think we need to refer to religion to raise critical questions about abortion. I will, instead, centre mine on widely-held convictions about human personhood. 

What is personhood about? Consider the idea of equality. Almost everyone would agree that “we are all equal”. But, of course, we aren’t. We are unequal in our intellectual prowess, in our athletic ability, in our skills and backgrounds. Yet though we are empirically unequal, we say that we are equal – not in capacities or attributes but equal in dignity and worth. If our dignity and value isn’t located in our achievements or attributes, then on what grounds do we say are we equal? We are equal because of the type of beings that we are. We are human persons.

Personhood is something we have because of the type of being we are. It is the source of our equality, rights and autonomy.2 So while abortion is about women’s autonomy and dignity, it also raises questions about when personhood begins and when we become bearers of dignity and worth. To answer these questions, we must turn to human biology.3

The science of sexual reproduction

In ordinary sexual reproduction, a male sperm penetrates and fertilises a female egg. These two sex cells unite and form an entirely new and distinct organism, initially with a single cell – the zygote. Three things stand out about the zygote or early human embryo. First, the embryo is genetically distinct from any cell of its mother or father, including the sperm and the egg. Second, it is human, in that is has the genetic makeup characteristic of human beings. Third, it is a whole or complete, though immature, organism. 

The embryo has the “genetic programming” needed to direct its growth towards maturity and survival. It is not simply a part of another organism. Unlike the heart, lungs, or liver of the mother, it plays no functional role in the woman’s body. Compare this with the egg and the sperm, which are both functionally and genetically identifiable as parts of the male and female parents. They don’t direct their own development – they must either combine with a sperm or an egg, or die.4

Science confirms, then, that the embryo is a complete organism, and is also a human organism. But is an embryo a human person? Does it possess dignity and worth? 

Who is a person?

The embryo is not conscious, is incapable of higher mental functions and cannot survive independently. It has the potential for all this, but it can’t immediately exercise these capacities. Does the lack of these capacities mean that an embryo isn’t a person?

If personhood depends on being conscious, then those who are asleep, or in reversible comas, are not persons. Yet we agree that they are. If personhood depends on higher mental functions, then Down Syndrome children, the mentally retarded and late-stage Alzheimer’s patients are not persons. Yet we agree that they are. 

If personhood depends on independence, on the ability to survive without constant care and nutrition, then infants and elderly patients are not persons. Yet we agree that they are. We would agree that someone without all three capacities – an infant with Down Syndrome lying unconscious in a neonatal care unit – is a person. 

This is the weakness of a “capacities approach” which says that personhood depends on certain capacities: its implication is that certain humans – the disabled, the old, the weak – are not persons and do not have rights. Yet we all know that they are and they do. And if they, with their lack of capacities, are persons, then there is no reason why an embryo is not. 

Some say that birth makes a difference. But why? It cannot be appearance, because appearance is not a measure of personhood. It cannot be a capacity for independent survival because, even after we cut the umbilical cord, an infant is completely dependent on others. What difference does birth make?

A better account of personhood – which both explains our convictions and follows human biology – recognises that human beings have different stages of development. We begin as embryonic human beings, develop into foetal human beings, emerge as infant human beings, grow into adolescent human beings and become adult human beings. But there is no difference in kind between these organisms. There is only a difference in their stage of maturity and immediately exercisable capacities – qualities which are irrelevant to their personhood. 

If we believe in autonomy, dignity and rights for all, then we believe in human dignity and worth – and it is our personhood that gives us this worth. If we say that an embryo does not possess human dignity and worth, then we must say the same of some of the weak, the old or the ill. Yet since we accept that the latter have dignity and worth, we cannot deny it to the human embryo. The embryo is, therefore, a bearer of human dignity and worth.

Philosophy and rights

Now some will say that this is just technical, abstract philosophy that ignores the realities that women face. It gives a “clump of cells” a priority that we know intuitively that they should not have. There is weight behind this view. After all, we can see the 13-year-old who doesn’t understand rape, and can’t imagine a pregnancy, but will soon be a mother. We can hear from women who are dying because they used wire-clothes hangers to induce abortions. We can meet women who have had to give up their dreams because a narrow-minded society cannot accept their pregnancy. Against all this, how can the embryo have any significance? 

Let me say first that an embryo being a person is not, for me, a “clinching argument” against abortion. The law must take social realities into account. Also, while personhood may be philosophical and moral, so are autonomy, dignity, choice and patriarchy. This doesn’t detract from the immense practical significance of any of these philosophical and moral ideas. Finally, it is true that women’s suffering is tangible and real. 

By contrast, the embryo is foreign, removed, and barely recognisable to us as human. It’s easy to reduce it to a “clump of cells”. Yet the foreignness and distance of an embryo’s experiences is no reason to reduce the significance of those experiences. If we do that, we are no different from men who dismiss male harassment of women as “harmless banter” or to the rich who dismiss structural poverty as “laziness”. 

The law and compromise

The law is often about messy compromise. An embryo being a person does not mean that the choice and rights of women are unimportant. But it does reframe how we think about the exercise of those rights. 

First, it means that abortion is not just about the woman’s right to choose. It is about choice in the context of two persons, a woman and an embryo. And in any case, there is no such thing as an “unrestricted right to choose”. Everything depends on who is choosing and what they are choosing. Even in liberal theory, our freedom is limited by the rights and freedoms of others. If the embryo is a person, then it is an “other”, a bearer of rights. And we treat persons with enormous significance. A pregnancy transforms a woman mentally, physically, emotionally and economically. But is this enough of a reason to end the life of a person? 

There are many persons whose existence radically alters our lives. Think of an adult child caring for an aging, incapacitated and increasingly senile parent. Think of parents living with the emotional and mental strain of extricating a teenager out of gang violence. These persons inflict immense emotional, psychological and physical costs on those who care for them. Yet this doesn’t mean we may kill them. Similarly, a woman’s right to choose is necessarily restricted by the personhood of an embryo.

However, there are always exceptions. We recognise that persons are important, but we also know that there are times – in self-defence and war, for example – where the law allows us to end a person’s life. Is abortion sometimes like this? What about a pregnancy following a rape?

A rape leaves its victims are shattered. If it leads to pregnancy then a woman has a daily reminder of a horror she wants to escape. If she gives birth our society will heap indignity and stigma on her and the child for the rest of their lives. Isn’t this a form of socially mediated torture? Would we judge a torture victim for killing her torturer? Here, of course, the embryo is not responsible for the torture – but neither is the woman. The rapist, and our society, are. What if the only way for a torture victim to end her suffering was to kill an innocent human being? Would we insist she had to bear her suffering? 

The experiences of women who have faced this decision shows us that this is a genuine moral dilemma. If we agree that this is an instance where a woman should be free to choose, we must aware of what this means. It’s not just “maximising choice”. It means that women who are pregnant because of rape are sometimes subject to socially mediated torture which is so severe that many of them feel that ending the life of an innocent person is the only escape. This says far more about our society than it does about the woman who chooses to abort.

But there are also broader issues at stake. Abortion means changing the medical profession from one which, at least in theory, fights death, to one which actively brings it about. Do we want this? Also, as Dinesha Samararatne argues persuasively, the overwhelming majority of today’s abortions are not in the context of rape.5 They are carried out by married women because they lack knowledge about effective contraception. Why are the new reforms ignoring this reality? Are these proposals, perhaps, a “first step” to normalise abortion, and will they be followed later by more changes? The personhood of an embryo demands that we reflect on these questions.

From abortion to pregnancy

The implications of an embryo’s personhood go further, however. If it is a person, and persons have significance, then why does our society put most of the responsibility of bearing and raising a child, on women? Shouldn’t men, and society, play a role? The personhood of an embryo must change how we view pregnancy and not just abortion. Let me suggest three legal responses that go beyond the criminalise/decriminalise debate.

First, we must amend the Penal Code so that women are not subject to criminal sanctions for seeking an abortion. We know that they are often driven to it by forces beyond their control. We also know that a fear of prosecution keeps women from seeking medical assistance when complications occur after an unsafe abortion. This is one way for the law to recognise this.

Second, the law must share the burden of caring for a child more equally. The Maintenance Act of 1999 compels a man who impregnates a woman to maintain her during and after the pregnancy, regardless of whether they are married, with the threat of criminal sanctions. Why not go further and use this moment to introduce a mandatory legal requirement for all government and private institutions to offer paternity leave, with incentives to those who choose to take it? The normative impact of this on how our culture views parenting could be enormous. 

Finally, there must be a system of State support – including financial and psycho-social care – for indigent parents and pregnant mothers. This is how the law can respond to the reality of poverty and its impact on women and families. Running a workable system in a culture that shames single-parents is a tremendous challenge. But it is a step towards society bearing more of the responsibility of pregnancy.

Those who say an embryo is a person cannot be satisfied with just opposing abortion. They must be concerned about its life – not just the chances of its death. Those who accept that there are the forces that dominate women, must confront them and create viable alternatives for women who feel that abortion is the only option. These are things that anyone can support, regardless of their view of abortion. But those who are vocally against abortion, must be vocally in favour of this.

The law and beyond

In the end, however, the law has its limits. It can’t stop people from shaming raped women. It can’t stop people from believing that women are primarily responsible for raising a child. It can’t dismantle a system of male domination. It can help, but these are problems of society and culture and they need a response from the members of this society. 

Many who recognise the personhood of an embryo fail to be consistent about their convictions. If we oppose abortion because “the law must protect the weak and the marginalised” are we also concerned about the others who are vulnerable in our society? If we believe that those born with deformities are of equal worth, is this reflected in how we treat the disabled in our spheres of influence? If we believe that a child has value regardless of the circumstances of its birth, and a woman regardless of what she has gone through, then how do we treat children born of rape and their mothers? Would we support institutions like Prem Nivasa or Ma Sevana which work with them?6 Or are we a part of a system that shames them and makes them feel that abortion is the only option?

If men oppose abortion because of the worth of an unborn child, are we willing to take an equal burden in caring for our children? Would we, for instance, be willing to give up our careers to raise them, rather than expecting our wives to? If we agree that women are marginalised by a system of male control, how can we respond? Would we be willing, for instance, to have awkward conversations and challenge our friends and colleagues about male harassment of women?

Abortion, then, must lead us to ask questions about our own lives. It must also lead us to ask the basic questions about humanness and society. Who is a person? How do we account for our belief in human dignity and worth from? What sort of society do we want to live in? One where the weak and marginalised are protected and valued or one where only the familiar, the connected and those with a voice are heard? 

These are difficult questions, but we must face them. For it is only in answering them, and in living our answers, that we can become a society that protects the dignity, autonomy and worth of all persons – whether born or unborn. 

[The writer holds an LLB from the University of Colombo and is an Attorney-at-Law. He is currently a Lecturer in Law at the Department of Law, Faculty of Arts, University of Jaffna. He is grateful to all those who read and commented on earlier versions of this article.]

Footnotes

 “Decriminalise abortion in Sri Lanka: Statement by Human Rights Defenders and Women’s Groups” DailyFT, 13 September 2017 <http://www.ft.lk/opinion/Decriminalise-abortion-in-Sri-Lanka--Statement-by-human-rights-defenders-and-women-s-groups/14-639448> 

2 Article 1 of the Universal Declaration of Human Rights. In saying this I am not denying that animals and other living beings have their own dignity and worth. I agree that they do.

3 I deliberately avoid dealing with cloning and in vitro fertilisation, though I think that the same conclusions apply.

4 See further Robert P George and Christopher Tollefsen, Embryo (Doubleday 2008) 27-56

5 Dinesha Samararatne, ‘The Abortion Debate: Mismatched and Misplaced?’ Groundviews, 13 September 2017 <www.groundviews.org/2017/09/13/the-abortion-debate-mismatched-and-misplaced/>    

6 See “Events related to Prem Nivasa” <http://www.queenofangels.lk/index.php?act=prem>  ; “Ma Sevana – Home for Teenage Mothers” <https://www.sarvodayasuwasetha.org/homes/cdc-for-teenage-mothers-ma-sevana>