Analysis of the Ethical Problems of Abortion (Research Paper Sample)

The debate surrounding the issue ‘abortion’, is sometimes presented as involving a conflict between the moral interests of the unborn child and those of the mother. While some people adopt a duty- based approach, others adopt a rights based or utilitarian position that grants direct moral protection to both the foetus and the pregnant woman.[Shaun D Pattinson, Medical Law and Ethics (4th edn, Sweet and Maxwell 2014) 227]
According to Pattinson, for there to be a conflict at all, a foetus must have moral value or status, in the sense of being granted duties of protection. The ‘moral status of the unborn child’, is one of the most hotly debated issues within bioethics’.[ibid]
There are various moral positions as regards the moral status of the foetus. At one part of the divide is the ‘full moral status’ position which holds that the foetus deserves the same level of protection as an adult human being. At the other extreme, is the ‘no status position’, which holds that the foetus itself has no intrinsic value or status, until at least at birth. This position regards the foetus as no more than a collection of cells, whose intrinsic features grant it no special protection. Between this two, there is a middle ground known as the ‘limited status position’, which holds that the foetus has a status resting somewhere between full and none.
The most popular limited position is the proportional status position, which holds that the moral status of the foetus increases with gestational development, until it attains full moral status at birth or beyond.[(n 1) (For the proportional status, abortion may be permissible at the early stages of the pregnancy like the first trimester, but as the foetus develops, from the second trimester on, abortion becomes impermissible.)]
The moral status of the foetus is a key factor in determining the permissibility of abortion. Those adopting the full moral position, consider abortion equivalent to murder. The no status position holds that abortion involves no intrinsic wrong. The limited status position sees abortion as something that cannot be left as free for all or prohibited in all circumstances. Specifically, the proportional status position, a subset of the limited status position, holds that the closer to birth, the greater weight attached to the fetus and the greater the justificatory burden placed on those who wish to abort.[Shaun D Pattinson (n 1)]
Preferably, the labels ‘pro- choice’ and ‘pro- life’ will be adopted in this chapter. These positions are the same materially with the no status and full status position respectively.
2.2 The Foetus’ Right
Difficulties that are encountered in answering the question of the status and the rights, (if any) of the foetus are numerous. Questions such as ‘ is the foetus really a human being?’, ‘is the foetus a person or only a more or less organized clump of matter?’, ‘does the foetus have its own independent existence or is it part of the mother’s body?’, ‘does the foetus hold the status of person because of its organization, does it acquire it through its activities, or does it receive it only from positive law, depending on the customs of the time and society?’. ‘How do we compare the rights of the foetus if it has any, with those of the mother?’ According to Murray, these similar doubts or questions perplex the investigation and call for great attentiveness in our efforts to arrive at a fair appreciation of the obligations to the pre born child.[Warren Murray, ‘ The Nature And The Rights Of The Foetus’ (1990) 35 American Journal of Jurisprudence 149]
Since a foetus is hidden from normal view, by its nature, people tend to consider it as not fully human and even often, through ignorance of biology, they are tempted to consider it as a mere clump of organic matter. An examination of the structure and activities of this hidden being, and especially of its development quickly corrects these inclinations. The foetus has primary potency to be the person and its development, engaged from the outset, towards the full perfection of that person are sufficient signs of the person that it is, as the completion of its maturing process is already inscribed in its beginning. Thus according to Murray, should the exact status of the foetus be uncertain, doubt alone should suffice to gain it the respect due to a human being.[ibid]
The Convention on the Rights of the Child (CRC) entered into force in September 2nd, 1990 is the first most widely accepted international legal instrument which embodies the recognition of human rights to children. The convention enshrines amongst other things, every child’s right to life and survival, to a nationality, to an identity, to be heard, to freedom of thought, conscience and religion, and to health.[Convention on the Rights of the Child 1990 ( The United Nations Convention on the Rights of the Child is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children.)] [Abby F Janoff, ‘Rights of the Pregnant Child v Rights of the Unborn under the Convention on the Rights of the Child’ (2004) 22 Boston University ILJ 163] [(n 7) Art 6] [(n 7) Art 7] [(n 7) Art 8] [(n 7) Art 12] [(n 7) Art 14] [(n 7) Art 24]
However, the convention is silent on the age at which childhood begins, and unclear regarding whether the rights reserved to children under the Convention apply to the unborn. The convention leaves room open for interpretation of when childhood may commence, whether at fertilization, at conception, or at birth or at some point between conception and birth. However, paragraph 9 of the Preamble of the Convention quotes the 1959 Declaration on the Rights of Child, suggestive of protection available to the unborn child: ‘…the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before as well as after birth.’ The text of the preamble to the convention suggests that a ‘child’ is considered to be child before birth and is therefore, entitled to legal protection.[Siddhartth Singh Nehra and Abhay Singh Rajput, ‘The Legal Personality of an Unborn Child: A Comparative Analysis of USA and India’ (BA LLB (Hons), National Law University Lucknow, India 2019) HYPERLINK "https://www.google.com/url?sa=t&source=web&rct=j&url=https://amity.edu/UserFiles/aibs/a6c02019%2520AIJJS_92-105.pdf&ved=2ahUKEwiEz4TO2vvwAhWPZMAKHVt6BQsQFjAAegQIBBAC&usg=AOvVaw1lmmvT-cgbwIB7y0OC_6hx" https://www.google.com/url?sa=t&source=web&rct=j&url=https://amity.edu/UserFiles/aibs/a6c02019%2520AIJJS_92-105.pdf&ved=2ahUKEwiEz4TO2vvwAhWPZMAKHVt6BQsQFjAAegQIBBAC&usg=AOvVaw1lmmvT-cgbwIB7y0OC_6hx accessed 30 May 2021] [ibid] [(n 7)] [Siddharth Singh Nehra and Abhay Singh Rajput (n 15)]
In sharp contrast to this claim, the Preamble to the Convention doesn’t define ‘child’ for the purpose of the Convention, as state parties to a Treaty are not bound by the Preamble to the Treaty. It is a well established principle that Preamble doesn’t have any obligatory force of its own. The International Court of Justice has observed that; ‘the Preamble to the United Nation Charter forms the moral and political basis for the legal provisions thereafter set out. Such considerations do now, however in themselves amount to rules of law’. Thus it cannot be conclusively argued, that paragraph 9 of the preamble to the Convention, can ascertain the true scope of the word ‘child’ mentioned under the convention.[Philip Alston, ‘The Unborn Child and Abortion under the Draft Convention on the Right of the Child’ [1990] Human Rights Quarterly 156 HYPERLINK "https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.jstor.org/stable/762174&ved=2ahUKEwir6saz2_vwAhVFqxoKHWr4Bk8QFjAAegQIAxAC&usg=AOvVaw2OkXx6RGYfyjHSgmHQi63w&cshid=1622731942703" https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.jstor.org/stable/762174&ved=2ahUKEwir6saz2_vwAhVFqxoKHWr4Bk8QFjAAegQIAxAC&usg=AOvVaw2OkXx6RGYfyjHSgmHQi63w&cshid=1622731942703 accessed 30 May 2021] [Ethiopia v South Africa; Liberia v South Africa (second phase) (1966) 6 ICJ 34] [Siddharth Singh Nehra and Abhay Singh Rajput (n 15)]
According to Nehra and Rajput, the text of the preamble, however can serve as a guiding aid to the interpretation of the Convention. The Vienna Convention on Law of Treaties, 1969 in Article 31 states that; ‘meaning to be given to the terms of the treaty in their context and the context for the purpose of the interpretation of a treaty shall include its preamble’. Since there is no definition of the meaning of the term ‘child’ mentioned in the convention, Nehra and Rajput suggest that recourse can be taken to the Preamble to the Convention to serve as an interpretational tool. When the meaning of the term ‘child’, is interpreted in light of the Preamble, it thus can be argue that the Convention seeks to protect the right to life of the unborn and other rights mentioned under the Convention.[ibid] [Vienna Convention on Law of Treaties (1969) 1155 UNTS 331] [ibid] [(n 15)]
Nigeria ratified the Convention on the Rights of the Child (CRC) in 1991 and since ratification, Nigeria passed the ground breaking Child’s Rights Act in 2003 enshrining the rights of the CRC in national law. 23 out of her 36 states have subsequently passed state-wide child rights laws.[‘Universal Children’s Day: A...