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Law Notes Medical Law Notes

Abortion Notes

Updated Abortion Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest ...

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Learning Objectives: Understanding the issues of abortion legitimacy

Learning Goals:

Describe the moral status of a foetus

Explain whether a pregnant woman’s autonomy should include the right to terminate an unwanted pregnancy

Outline the legal position re abortion in the UK

Consider abortions within the context of eugenic selection, forced caesarians and technological developments

The Ethics of Abortion

In what circumstances, if any, is it legitimate for a woman to terminate unwanted pregnancy? Towards the restrictive end, it might be argued that abortion is legitimate where the woman’s life is in danger, or when she is pregnant as a result of rape. At the permissive end, it might be contended that abortion should be available upon request, at least during the first few months of pregnancy.

Within the context of abortion, there are three different moral perspectives worth identifying when justifying one’s moral views re abortion:

an emphasis on the moral status of the foetus, and in particular upon its personhood, or potential personhood;

an emphasis upon the physical invasiveness of pregnancy, and upon the degree of self-sacrifice which would be forced upon the woman who is compelled to continue an unwanted pregnancy;

a compromise position in which abortion is permitted, but only in certain restricted circumstances which are designed to offer the foetus some protection.

Moral status of the foetus

John Finnis would argue that conception is the moment that a new individual comes into being, and that this should be the point at which it should acquire all the rights of personhood. Interestingly, he notes that by saying this is the beginning of a person’s life is not to work backwards from maturity, but rather to say this is the most clear-cut beginning.

This sort of argument has been disputed by others, such as Warren, who contend that while the foetus may be human, it is not yet a person, and so its interests cannot take priority over the rights of an actual person. Relevantly, to Warren, the concept of personhood includes at least one of the following: consciousness and the capacity to feel pain, reasoning, self-motivated activity, the capacity to communicate and the presence of self concepts and self awareness. More fundamentally, Warren argues that the rights of a potential person never outweigh the rights of an actual person.

Warren’s criteria for personhood are themselves controversial. Abbott has pointed out that this test for personhood would exclude not only foetuses but some seriously disabled children/adults (e.g. those who are comatose or paraplegic).

In legal terms, a person’s rights exist after birth, but not before. However, Gillon argues that it is not evident that a new born baby is a morally different entity to a foetus immediately before birth, claiming that such a distinction boils down to biological geography - if a baby lies north of the vaginal introitus, then it does not possess a right to life, whereas if it lies south, it does.

Don Marquis takes a different approach and argues that abortion is wrong because it is relevantly similar to killing an adult human being. According to Marquis, what makes killing adult human beings wrong is that it deprives them of everything they might value in future. Similarly, abortion denies that from the foetus. Of course, the problem here is that using contraception may deny a potential person their potential future, but this does not necessarily mean that it is the wrong thing to do. Another problem is that, as raised by Brown, giving a foetus the right to live essentially gives it a right to deprive another of their autonomy. It would not make sense to say that in the context of organ transplants (e.g. I need a new heart, therefore I have a right to yours), so why does it make sense to say that in the context of pregnancy.

The pregnant woman’s right to self-determination

As Olivia explains, to be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough nature. Of course, the foetus is not an intruder. It is occupying the woman’s body through no fault of its own. However, the claim is generally made that it has no right to force the woman to continue this relationship of unparalleled intimacy without her consent. Some may argue that if a woman consents to sexual intercourse, they consent to pregnancy by extension. However, it does not follow that a person who runs a risk consents to the manifestation of that risk.

The woman’s rights in this context does not depend on proving that the foetus is not a person. Rather, as Jarvis argued, even if the foetus is a person, pregnant woman might have the right to defend themselves from the physical invasion of unwanted pregnancy. Jarvis illustrates the apparent absurdity of the argument that the right to life is stronger than a mother’s right to autonomy by postulating the example where you wake up with another human attached to you for life support for a period of 9 months without your consent.

There also appears to be the view that while motherhood is natural, rejecting motherhood is unnatural and selfish. Siegel points out that attitudes about abortion do heavily rest on normative judgements about a woman’s sexual conduct, and their role as ‘child-rearers’. Contrast this however, with the argument that because motherhood is intrinsically good, a woman who rejects it without a compelling or virtuous reason, is acting wrongly.

A compromise position?

This position, which acknowledges the right of the woman to terminate, as well as the right of the foetus to life, is consistent with most countries’ regulations: abortion is permitted within parameters. In this regard, Dworkin argues that people share a deep belief in the sanctity of human life, and therefore regard abortion as a serious matter, but that they also do not believe the foetus has exactly the same rights as the mother, otherwise it wouldn't be...

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