Aug 13, 2021 in Law

Abortion: the right to live and the right to die

Abortion is one of the oldest problems of medical ethics, theology, philosophy, and law. The Hippocratic Oath prohibits the doctor to terminate pregnancy. At the same time, Aristotle considered abortion acceptable in demographic purposes. In the modern world, the permissibility of abortion and its limits are a sharply debatable issue, including religious, ethical, medical, social, and legal aspects. For many people, the problem of abortion is primarily a moral issue with the questions about the beginning of human life, the rights of fetus, a woman’s right to self-determination, and the right of other people to make decisions regarding a woman’s body. In numerous states, debates regarding abortion are conducted on the level of state policy. Thus, abortion opponents fight for acceptance, maintenance, and expansion of restrictions or bans on abortion, while the supporters of abortions convince of the cancellation or mitigation of such laws. The purpose of the research paper is to study the issue of abortion from the legal perspective, examining its historical and modern condition in different countries.

The Issue of Abortion from the Moral and Medical Points of View

Abortion is termination of pregnancy. It is known that there are spontaneous and artificial abortions. Spontaneous abortion (abortus spontaneus) occurs without any intervention, against the wishes of the woman. If spontaneous abortions are repeated, these are habitual abortions (miscarriage). Artificial abortion (abortus artificialis) is called the deliberate termination of pregnancy in a medical institution or outside of it. According to modern medical standards, abortion is usually conducted with a term of up to 20 weeks of pregnancy or if the gestational age is unknown – with the fetus weight up to 400 g. According to the World Health Organization, the statistics of abortions is conducted in only 61 states. Nevertheless, WHO tries to estimate the total number of abortions in the world and calls the approximate number from 46 to 50 million each year. Half of them are performed in the countries where abortion is an illegal procedure, which means that illegal, unsafe abortions are practiced there. According to the data of the World Health Organization, unsafe abortions result in approximately 70,000 of women’s deaths and cause about 5 million disabilities per year worldwide. It is seen that tough legislation in the countries does not decrease the number of abortions.

This procedure raises a great number of moral questions. The first moral issue that causes controversy is whether it is a murder or not. Many believers consider abortion as murder of a human, although at an early stage of his/her development. According to the supporters of abortion rights, the embryo cannot be considered a child either from a legal or social or from a biological point of view. The second debatable moral question concerns the priority of embryo interests over the interests of a woman or vice versa. Thus, the opponents of abortion put the right to life of the embryo on par with the rights of women. Supporters of abortion rights give priority to women’s right to personal integrity and freedom of a body. Realization of the value of the embryo is associated with the emergence of Christianity. In the era of early Christianity, abortion became identified with the murder of a person. At present, all religious denominations forbid the faithful to participate in this procedure.

In the traditional medical approach, the viability of the fetus has always been considered the main question of the issue of abortion. It is the threshold in the prenatal development, when the fetus is able to survive outside the mother’s body, taking into account the opportunities offered by modern technologies. According to recommendations of the World Health Organization adopted in 1950, the fetus is considered viable, reaching the gestational age of 22 weeks or more, or with a birth weight of 500 g or more, and showing any of the signs of life such as respiration, heartbeat, pulsation of the umbilical cord, or voluntary movement of muscles. In such a way, more than 60 years ago, the world acknowledged that up to 22 weeks of pregnancy, the fetus reached a lower threshold of viability, when life and health outside the mother’s body could be saved with the help of special methods of nursing. Therefore, starting with a specified period, the fetus is subjected to legal and judicial protection as a person.

The majority of countries distinguish three groups of indications for abortion - upon the request of the woman, for social reasons, and for medical reasons. Thus, abortion for social reasons can be performed for pregnancies up to 22 weeks. The only social indicator for the artificial termination of pregnancy is a pregnancy caused by rape. Termination of pregnancy for medical reasons can be performed regardless of gestational age. The list of medical indications for abortion includes several classes of diseases. These diseases include rubella, active forms of tuberculosis, some forms of diabetes, and others. In all cases, it is necessary to remember that abortion is the last resort for the woman.

Abortion from the Legal Point of View

Since ancient times, the problem of abortion, among other things, has been a legal issue that has a connection with protection of the right to life. Thus, numerous laws and acts have been introduced to regulate the question of abortions. Although not decisive, the legal status of a procedure of abortion is an important factor, affecting the availability, security, and prevalence of abortion. It should be noted that life is the largest and most important social and legal benefit of personality. The right to life is the first fundamental natural right, without which all other rights are meaningless. Agreeing with the above opinion, Reed Boland states that a question regarding other rights and freedoms becomes meaningless without the right to life. Incidentally, this right is enshrined in a large number of domestic as well as regional and universal international instruments. Nevertheless, it still contains a number of outstanding issues that are unquestionably important for the development of modern legal society. Until now, an abortion issue causes heated debates of philosophers, doctors, and lawyers. There are also a number of differences on the implementation of certain aspects of the right to life, cases of its limitations, and the duty of the state for its protection.

It is generally accepted that the right to life as a fundamental human right first found its form in a universal international act only after World War II, with the adoption of the Universal Declaration of Human Rights in 1948. Thus, Article 3 of the mentioned act contains a provision that everyone has the right to life, liberty, and security. Despite the somewhat generic nature of the declaration of the right to life, this provision of the Declaration is recognized today as a customary norm of the international law that all states must comply with. However, when speaking about international protection of human rights to life, modern community is primarily guided by the provisions of Article 2 of the European Convention on Human Rights adopted on November 4, 1950 that contains the prohibition of intentional deprivation of life. Thus, part 1 of Article 2 of the Convention states that the right to life of every person must be protected by the law. No one shall be deprived of life intentionally, except in the execution of a sentence of a court following the conviction of a crime, for which the law provides a punishment. The first sentence of part 1 of Article 2 of the Convention imposes obligations on the state to protect human’s right to life by the law, and according to the same article, the state bears a special responsibility for the lives of people, over which it exercises complete control. Thus, it is a question whether an unborn child is a citizen that should be protected by the state.

An important question about the beginning of human life, according to collision in determining the start of the legal protection of life and the legality of abortion, is involved in the practice of the European Court of Human Rights. First of all, the European Court has the question whether Article 2 of the Convention protects the life of the unborn child. It is necessary to note that in the representation of the greatest part of the international community, abortion is not a violation of the right to life. The Court does not regulate the question of the moment of the emergence of the right to life as well as the start of the legal protection of life. Nonetheless, the position of the Court is more defined and reduced to the fact that it considers the moment of the physical birth of the child and not the conception to be the beginning of life. The European Court of Human Rights found that the ban on abortion would be a violation of Article 8 of the European Convention on Human Rights as the interference in private lives of women. At the same time, the Court notes that it does not consider mandatory to decide whether to consider the unborn child as a live within the meaning of Article 2 of the Convention. It can be concluded that abortion in its standard form is not considered a violation of the right to life.

The preamble of the Convention on the Rights of the Child adopted by the UN General Assembly resolution as of November 20, 1989 states that the state parties of the Convention should take into account the fact that by a reason of the physical and mental immaturity, children need legal protection even before birth. In addition, according to Article 1 of the Convention, every human being below the age of 19 is considered a child. It is seen that the initial moment, from which the human being should be recognized as a child, is not set. Within the meaning of the above Article, a child is not only a born human being but also the one that is still in the womb and not born. If, according to the given international legal standards, a human being that is still in the womb is also recognized as a child, all the rules relating to the rights and interests of children should be applied, including Article 6 of the Convention on the Rights of the Child, according to which every child has the right to life. In such a way, according to the Convention, abortion is considered a murder of a child.

The majority of countries allow women to have abortion. Moreover, 193 independent states adopted specific laws defining the right of women to abortion. Thus, in 148 countries, there are certain restrictions on the possibility to conduct such an operation. In four states, this act is regarded as a crime against life and is equivalent to murder. Only 41 countries have rather “soft” laws that allow abortion on the basis of a simple demand and desire of a woman. According to the UN, almost in all countries (98%), abortion is permitted in the cases, where there is a threat to a mother’s life and in more than half of the countries – in the presence of a threat to the mental and physical health of a woman. Other reasons, for which abortion is considered to be a legally justified action, include rape, incest, abnormal development, and fetal disease as well as various social and economic reasons. Therefore, abortion is allowed in most of countries, justifying it by various reasons.

Studies of social psychologists show that a law-abiding person considers something prohibited by the law as bad and unacceptable while something permitted by the law – good and right. In such a way, the legality of abortion is morally acceptable to the vast majority of the population. The law, which does not put almost any obstacles to abortion, pushes a woman to an easy and thoughtless way out of the situation of complicated pregnancy. On the contrary, the introduction of legal restrictions on abortion and the introduction of certain conditions for legal abortion would mean that the state and the legislators do not consider abortion morally neutral and they believe that abortion is not only dangerous to the health of the mother but also morally unacceptable for the family and society. Restrictions on abortion are not a limitation of the rights of the woman but a support for her. Psychological researches and the practical experience of every woman show that the beginning of pregnancy is always accompanied by psychological depression. It has different physiological causes as the body goes through numerous changes, associated with pregnancy. In addition, there are also social causes as it is necessary to solve a number of important issues that may include whether to continue education, decide how to deal with work, housing, and other problems. During this period, a woman is extremely vulnerable and painfully sensitive, and her ability to make rational decisions is greatly reduced. Frequently, after the 14th week of pregnancy, depression gives way to emotional rise and joy. However, a woman makes the decision to have an abortion in the most unfavorable period of pregnancy. Abortion violates a number of inalienable human rights. It violates the right to life, which means that the child’s right to life only depends on the desire of the mother. The current legislation regarding abortions in numerous states violates the right to a responsible decision. Abortion also is the violation of the right of a man for paternity as the father of the unborn baby has no rights for the child. In general, abortion hinders a citizen’s right to health protection.

Legislation of Different Countries Regarding the Matter of Abortion

Several decades ago, abortion was prohibited in many countries. Thus, Mary Boyle stated that ‘the law on abortion, like all legislation, has developed against a background of particular social and moral concerns’. At the same time, Cook, Erdman, and Dickens are of the opinion that ‘constitutional decisions on abortion began in an era when a transnational women’s movement was beginning to contest the terms of women’s citizenship, eliciting diverse forms of reaction, both supportive and resisting’. The first country allowing abortion on the woman’s request became the Soviet Russia in 1920. After Russia, other republics of the USSR adopted the same laws. In 1936, abortion was banned in the Soviet Union but again allowed in 1955. Over the years, the practice of abortion has become so habitual to the Soviet republics that the right to abortion was often perceived as an integral part of the right to health care. However, not all countries have a liberal legislation like in Russia. Thus, European countries followed the example of the Soviet Union only after World War II. When in 1955, after a nearly 20-year ban, abortion upon the request of women in the USSR became legal again, the trend of liberalization in this field spread to the neighboring socialist countries. Bulgaria, Hungary, Poland, Romania, Czechoslovakia, and Yugoslavia adopted the laws permitting abortions. At the same time, Western European countries did the same thing 15 years later. For example, in the United Kingdom, abortion became legal for a number of reasons in 1967. In southern European countries, it occurred even later. In Italy, the law to expand the grounds for abortion was passed in 1978. However, abortion was allowed only in case of threat to a woman’s life before that. In the United States, abortion throughout the country was legalized in 1973. As Shroeyr states, ‘the restrictiveness of traditional abortion laws began to provoke criticism.’ Since that time, a great number of states have legalized the law allowing abortions.

As it was already mentioned, the majority of countries allow women to have an abortion. In Poland, it can be done during the entire period of pregnancy but only under the condition that it poses a danger to the woman’s life and if up to the 12-week period, a serious anomaly is revealed in the fetus. Abortion is permitted in the case of pregnancy resulting from rape or incest. Abortion for social reasons is prohibited. In Germany, there are similar limitations and restrictions. In the case where a woman insists that she does not want to have a child, she is still able to have abortion up to the 12-week period. However, she has to visit the set of mandatory consultations calling her to think again and continue the pregnancy. In Greece, the law is quite liberal. Nonetheless, the promotion of abortion is strictly forbidden. In Sweden, a physician has the full right to refuse to terminate a pregnancy, which is spelled out in the legislation. It should be also noted that in Denmark, as well as in the Netherlands, a doctor also has the right to refuse to perform an abortion. In Norway, doctors have the right not to perform an abortion but they must explain the reason for the refusal. In Macedonia, there is a period up to 10 weeks for the woman to do abortion. Moreover, the clinic must have special permission to perform abortions. After the expiration of that period, it is possible to terminate a pregnancy only after the permission of the special commission that includes a gynecologist-obstetrician, a general practitioner, and a social worker. In Korea, a married woman must ask her husband’s permission to have an abortion, which she can do before the period of 28 weeks as desired. In the United States, there are several conditions to get permission to have an abortion. For example, in 25 American states, a woman should take some time to think before the procedure. In 35 states, permission is given only with the consent of parents or guardians. As it is seen, these states, as well as the majority of others, have quite smooth laws regarding abortion.

Despite this fact, there are countries whose laws on abortions are extremely strict. Laws that prohibit abortions or permit them in the exceptional cases, where the pregnancy poses a direct threat to the woman’s life, are adopted in Northern Ireland, the Republic of Ireland, and Malta. In such countries as Iran, Iraq, and several other Asian and African countries, abortions are equal to murder of a person. In most Muslim countries of Asia, the termination of pregnancy of a pregnant woman is allowed only to save her life or - in some countries - to protect her health. Therefore, the number of countries where abortions are not allowed is rather small, and they are mostly very religious states. The official ban on abortions in most countries does not mean that women do not terminate their pregnancies there. It is estimated that in developing countries, 40% of all abortions are performed mostly illegally and with dire consequences for women’s health. In such a way, abortion is a rather common practice in the countries where it is legally banned.

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Conclusion

Abortion is the termination of pregnancy accompanied or caused by the death of the fetus that is not capable of independent existence as opposed to premature birth. The topic of abortion for many people is quite painful. Society’s attitude to this problem is quite different. Some people have a highly negatively attitude to it and they believe that abortion is murder. Others refer to abortion as a freedom of choice of every woman or family and they do not see anything wrong with that. Therefore, in today’s world, the permissibility of abortion is one of the most controversial questions that raise medical, religious, social, ethical, and legal aspects. In some countries, this problem has become extremely acute, causing a division and fierce confrontation in society. Currently, norms relating to abortion exist in the criminal law of all countries around the world. These days, termination of pregnancy is legally permitted in almost all countries of the world if pregnancy threatens a woman’s life. In other cases, the legislation regarding abortion varies greatly between states. In the most liberal group of countries, the legislator comes from the recognition of the right of woman to decide independently whether to keep or terminate her pregnancy. Criminal policy is aimed at protecting women’s health and, thus, only community-acquired and late abortions are punishable. Abortions upon request at the early stages of pregnancy are allowed on the territory of many countries.

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