The abortion debate

By Sanjayan Rajasingham

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, there’s 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 else’s 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 doesn’t 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 doesn’t 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, it’s one thing for him to decide to walk away. It’s 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 doesn’t go to show that she may kill it.

Abortion as unintentional killing

But is abortion not primarily about killing? Some argue instead that it’s the only effective way of refusing to support an embryo. Anything short of this and the embryo is still in the woman’s 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 doesn’t 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? 

It’s 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. It’s true that in Sri Lanka the swimmer has no legal obligation to save the drowning man. It’s also true that his deciding not to act isn’t 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 moral obligation to help? Most of us would say he did. This duty isn’t the result of consent – it’s 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 don’t 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 don’t 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 isn’t 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 doesn’t 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 can’t 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, isn’t that discriminatory?

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 isn’t 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 law’s 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 it’s 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 society’s 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. I’ve also drawn heavily on the work of Robert George, Patrick Lee and Christopher Tollefsen. The responsibility for any errors, of course, is mine).

(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.)

Footnotes

1Robert 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” Slate 13 February 2008 <http://www.slate.com/articles/health_and_science/human_nature/2008/02/the_machine_of_a_new_soul.html>.