Several readers have commented on the case study “Genetic counseling, abortion, sex-selection, and autonomy.” What they asked me to address was — in order of priority — the rights of the fetus, then the rights of the mother. This is a tall order, but I will try to fill it by addressing the legal rights of the fetus and philosophical and religious positions on abortion.
Legal rights of the fetus
In the United States’ Supreme Court decision in Roe v. Wade, the majority of the justices maintained that a right to privacy was implied by the Ninth and Fourteenth Amendments and that this right to privacy was broad enough to include a woman’s decision to abort or to bear a child to term. To put the matter briefly, the Supreme Court ruled that the U.S. Constitution does recognize rights of/for a fetus. Moreover, the court ruled that the states themselves may not recognize any rights for a fetus in the first trimester of life, may recognize fetal rights only if they do not conflict with maternal rights in the second trimester of life, and may — if the state so wishes — grant legal rights to the fetus in the third trimester only.
The fundamental problem with respect to justifying abortion is the moral status of the fetus. There are basically three types of positions: liberal, conservative, and moderate. By and large, the liberal position on abortion is based on some variation of John Fletcher’s criteria of humanhood: 1) minimal intelligence (IQ of 40 is questionably human, 20 nonhuman) 2) self-awareness 3) self-control 4) a sense of time 5) a sense of futurity 6) a sense of the past 7) the capability to relate to others 8) concern for others; 9) communication 10) control of existence 11) curiosity 12) change and changeability 13) balance of rationality and feeling 14) idiosyncrasy and 15) neocortical function.
Using these criteria, fetuses — even with their potentiality to become a person — do not sufficiently resemble a person to have a right to life. Thus the liberal position would logically hold that since the fetus is not a human being, abortion is a purely private decision that needs no justification. At least until birth, the fetus has no moral status and lacks a serious right to life. However, this argument, if logically followed, would also justify infanticide.
The conservative position contends that from conception the fetus has full moral status; hence a serious right to life. It rejects the argument of developmental fetal stages because they are arbitrary and there is continuity in development of the human being. It holds that a clear line can be drawn only at conception. The fetus has a right to life equal to that of any other human being.
The moderate position argues that the concept of personhood is not decisive enough to have an impact on a solution to the controversy. But even if the fetus is a full-fledged person, then there are still cases where abortion is justified to prevent serious harm or death to the woman. Similarly, even if one accepts the liberal view that the fetus is not a person, there are still cases, at least in the late months of pregnancy, where abortion could not be justified, because of the fetus’ close resemblance to a “person.”
Thus, in the early months of pregnancy when the fetus hardly resembles a baby at all, abortion is permissible whenever it is in the interests of the pregnant woman or her family. The reasons would only need to outweigh the pain and inconvenience of the abortion itself.
In the middle months, when the fetus comes to resemble a person, abortion would be justifiable only when the continuation of the pregnancy or the birth of the child would cause harm — physical, psychological, economic or social — to the woman. In the late months of pregnancy, even given the assumption that a fetus is not a person, abortion seems to be wrong except to save a woman from significant injury or death.
Religious traditions throughout the world have different views on unborn children. In Japan, the Bodhisattva Jizo is the guardian of unborn children and expectant mothers. Legend has it that when babies die, they are sent to the underworld for causing their parent’s great suffering. Jizo rescues the children from that punishment.
Muslim views on abortion are shaped by the Quran and Hadith as well as by the opinions of legal and religious scholars and commentators. In Islam, the fetus is believed to become a living soul after four months of gestation, and abortion after that point is generally viewed as impermissible. Many Islamic thinkers recognize exceptions to this rule for certain circumstances; indeed, Azizah Y. al-Hibri notes that “the majority of Muslim scholars permit abortion, although they differ on the stage of fetal development beyond which it becomes prohibited.”
Catholic Christian teaching is first found in the Didache (c. 80), the oldest source of ecclesiastical law. The pertinent passage reads, “You shall not slay the child by abortion.” European-generated “mainline” Protestant denominations have moved in the direction of accepting legal access to abortion, although with qualifications regarding the moral justification for specific acts of abortion.
The traditional Jewish view of abortion does not fit conveniently into any of the major positions in the current abortion debate. While there is debate among Rabbis about whether abortion is a Biblical or Rabbinical prohibition, all agree on the concept that, fundamentally, abortion is only permitted to protect the life of the mother or in other extraordinary situations. Jewish law does not sanction abortion on demand without a pressing reason.
Abortion for sex selection
Only the most liberal philosophical position would support abortion for the purposes of sex-selection. Neither the law nor any of the religious positions support sex-selection as an adequate reason for seeking an abortion. It is also notable, particularly in light of the last case study (on the use of abortion to select a child’s sex at the father’s insistence), that none of the arguments address the rights of the father to determine whether or not “his” fetus will be aborted for any reason. Law, religion, and philosophy all exclude the father from any decisions regarding the fate of the fetus.
I leave the reader to decide his or her own position on the issue of abortion, but I would be particularly interested in hearing your opinions, and especially the opinions of any of our male readers.
Leah Curtin, RN, ScD(h), FAAN, is executive editor, professional outreach for American Nurse Today.
Fletcher J. Indicators of humanhood: A tentative profile of man. Hastings Center Report. 1972;2(5).
Ehrich T. Where does God stand on abortion? USA Today. August 13, 2006.
Didache II. Ancient Christian Writers. Kleist JA, trans-ed. Westminster: Paulist Press. 1948;16.
Eisenberg D. Abortion in Jewish law. http://www.aish.com/ci/sam/48954946.htm. Accessed March 15, 2012.