Rajiv Shah argues that disability is not a reason to end a life.
Under the Abortion Act 1967 a woman can de facto obtain an abortion on demand up to 24 weeks (the point of viability). There are, however, three instances in which an abortion can be obtained after 24 weeks and up until birth: first, if the pregnancy is a risk to the life of the woman; secondly, if the pregnancy poses a risk of permanent injury; or, thirdly, if there is a “substantial risk” that if the child were born it would suffer from such physical or mental “abnormalities” as to be seriously handicapped. Suppose we grant that ‘viability’, which is when the child could survive outside the mother’s womb given current incubation technology, is the right cut-off point (We’ll look at the argument for why this might be below.) Suppose we think the first two grounds represent fair legal trade-offs between the rights of women and viable foetuses. Is that third ground, risk of disability, a fair legal trade-off?
Because we’re asking whether a law is just, we need to pay attention to the legal details, but also how the law works in practice. What “seriously handicapped” means is not defined, but left at the discretion of doctors. It has been used to abort babies with cleft palates, an easily remediable condition. There are about a dozen such cases every year. Similarly, about 90% of babies diagnosed with Down’s syndrome are aborted every year.
For abortions performed after 21 weeks the procedure used is called “Foeticide”. It consists of an injection to stop the heartbeat of the foetus; then delivery, which we call ‘giving birth’ when the deliveree is still alive, is induced. A video representation of the procedure is available here. If the procedure was performed in reverse order (i.e. deliver first and then stop the heartbeat) this would be murder and would be illegal.
Can this be justified? The best arguments for abortions being a matter of private moral choice, and so legal, appeal to the rights of the woman. The most sophisticated version of such an argument was made by the philosopher Judith Jarvis Thomson. She argued that even if the foetus did have the right to life that did not mean it had the right to use the woman’s body for support. Hence it would be permissible for the woman to “disconnect” herself. But “disconnect” does not describe correctly what happens in foeticide. If Thomson is right the woman has the right to end the pregnancy, but not have the right to intentionally procure the foetus’s death. As she puts it “the desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive.”
So this argument can very well work to justify abortion before 24 weeks, at viability. This is because before viability abortion is the only way the woman can ‘disconnect’ if she doesn’t want her body to incubate the child. After that point, she can use artificial incubation to free her body while respecting the rights of the child. But Thompson’s argument won’t work with foeticide because, as the Royal College of Obstetricians and Gynaecologists puts it “the intention is that the foetus should not survive”. So the bodily rights argument cannot be used to defend abortion on these grounds.
An alternative justification might be that looking after the disabled child would be too great a burden on the parents. This cannot justify killing it. At most it would allow the parents to leave the child to the care of others.
Instead the justification must be that the foetus does not have the right to life. Why might we think this?
One suggestion for the foetus not having the right to life would be that it is not born. This doesn’t work. Whilst birth certainly has enormous social significance, it cannot make a difference to whether one has the moral right to life. Indeed a premature infant may be less well developed than a foetus just before the normal time of its delivery.
That is not to say that birth is morally insignificant. Birth is the point at which the interests of the woman and baby are no longer tied up. Prior to birth, the foetus can be a threat to the life or health of the woman. After birth, it can’t. That’s why birth marks the point where killing the baby to save the life or health of the woman is no longer allowed. But that is not what we are concerned with here.
The point is that birth does not make difference between having the right to life and not having it. If that is the case then it would appear that any argument in favour of foeticide would also apply to infanticide.
There are two ways the argument could go. On one view the point at which a baby would acquire the right to life would arise later in life. Many pro-choice philosophers defend the view that the right to life depends on possession of high level cognitive abilities which are typically only acquired a few months after birth. Indeed, in cultures unaffected by Christianity, this is and has been the prevailing view: infanticide is permissible. If that is true then killing viable foetuses or new-borns on any ground should pose no particular moral difficulty.
I take it we all agree that infanticide is wrong. So let’s consider a weaker claim instead: specifically, post-viability babies, and specifically, newborns, that are severely disabled do not have the right to life – even if normal post viability babies and newborns do have the right to life.
The claim might be defended as follows: someone has an interest in living only insofar as their living would bring them more good than bad; but, a severe disability brings more suffering than good, so they don’t have an interest in living. And people have a right to life only because they have an interest in living.
To put it more bluntly, such lives are not worth living.
The two difficulties with this claim are (a) that it doesn’t get the disability-aborter what they need, and (b) it has logical consequences we know are false.
It is insufficient because many of the disabilities for which foetuses are aborted do not make life not worth living. Down’s syndrome is one of the most common reasons to abort on the ground of disability. However, it does not produce suffering in the patient, it simply limits mental development. Indeed, people with Down’s syndrome report very high level of happiness. So for the purposes of defending the status quo this account will not do.
Another problem with this view is that parental consent should not be required to kill the baby. If the life is not worth living then it is in the best interests of the baby to die. Keeping it alive would just be cruel. Normally, we defer to the parents’ choices about what treatment their child should get. But sometimes we override that wishes when it is in the best interest of the child. So for example, we override the wishes of Jehovah’s Witness parents that their child does not receive blood transfusions.
If the baby’s life would be so full of suffering that it would not worth living then it would be in the best interest of the child to be killed. It would be wrong for the parents to keep the child alive. This means that the child should be euthanised regardless of the parents’ consent.
Of course, pre-birth, this would require forcing the woman to undergo a medical operation. For that reason it should not be done against her wishes. After birth, however, there is no such constraint. An infant suffering from such a condition should be euthanized even against the wishes of the parents. This pro-abortion, but anti-choice, consequence logically follows from the premise that some lives are not worth living. Anyone who rejects the conclusion must reject the premise.
The legality of post-viability abortions of disabled people can only be defended on the ground that the foetus does not have the right to life. But since birth alone cannot confer the moral right to life this means that infanticide on the ground of disability (or even on any other ground which reduces quality of life ‘too much’) should also be permissible. Furthermore, if this is so on the basis that some lives are not worth living, this would imply that such newborns ought to be euthanised even without their parents’ consent.
If such conclusions are unacceptable, then the premise of the argument must be rejected. It follows that such foetuses do have the right to life; and so abortion up to birth on the ground of disability ought not be allowed. This will be so even if we grant that abortion up to viability is generally permissible.
Rajiv Shah is a PhD candidate in Law at the University of Cambridge.
Featured photo by David Iliff. License: CC-BY-SA 3.0.