PRO LIFE AND PRO CHOICE DEBATE: A JOURNEY FROM RESTRICTION TO
REGULATION—DESTINATION
By
QAISAR ABBAS*
Abstract:
This paper seeks to understand
and critically examine various aspects of law relating to termination of
pregnancies in certain circumstances, in
ABORTION has been a
controversial subject throughout the history due to religious,[1] moral and
ethical[2] variations that surround it. Although
abortion is commonly practised throughout most of the
world and has been practised since long before the
beginning of recorded history[3] despite
legal and moral restrictions, imposed from time to time;[4]
yet the causes/reasons for the termination of such “unwanted” pregnancies have
been contradistinctive---subject to the socio-economic and various other
factors. [5] Abortion
is a subject that arouses passion and controversy. There can be found two
extremes on the issue, Pro life, who condemn and Pro Choice, who favour the abortion; hardly any middle course. The
situation becomes more irritating and puzzling when both extremes contend their
viewpoints on the ground of ‘Human Rights’.[6]
Therefore, laws regarding abortion range from complete permission[7] to the
absolute prohibition[8] in various
jurisdictions depending upon the ethical norms and legal codes.
Primarily, abortion raises the
fundamental questions about human existence, such as when life begins and what
it is that makes us human.[9] Abortion
is at the heart of such debatable issues as the right of women to control their
own bodies[10], the
nature of the State’s duty to protect
the unborn,[11] the
tension between secular and religious views of human life and the individual
and society,[12] the
rights of spouses [13] and right
of the parents to be involved in the abortion decision,[14] and the conflicting rights of the mother and
the foetus.[15]
And most importantly the central to the subject of abortion is one of the most
highly controversial social issues of all, sexuality. Any discussion of
abortion almost inevitably leads to a consideration of how a pregnancy came
about and ways that the pregnancy could have been prevented. As the time passes,
these questions and issues continue to occupy a significant place in public
discourse around the world.
An historical survey of the
subject reveals that distinctions between animals and humans were not always
clear at birth. Curran observes:
“It was commonly
believed that human women could be made to conceive an animal-like creature by
sexual union with an animal. The product of the conception was considered an
animal and could be abandoned or killed by the woman or anyone else. The woman
would often also be killed if she survived the birth, or be cast out of the
society.”[16]
In this context under the Roman
law the human foetus was not regarded as a legal
subject but as merely a part of a woman's body.[17] The foetus had the
potential to become a person and the law adopted the "fiction" (a
legal term for a binding presumption not necessarily based upon fact) that the
unborn person be deemed born whenever it was in its interest to do so, subject
to the mandatory condition that child borne alive. Therefore, there was no
legal protection if foetus was destroyed or
maltreated, same rule applied to the borne “monstrous” or ill-formed child.[18]
In the 13th century, for the
first time English law addressed the issue of abortion, law followed the
traditional instructions of the Church that abortion was acceptable until
'quickening' which, Bracton believed, was when the
soul entered the foetus.[19] Blackstone re-asserted that life was the
immediate gift of God, a right inherent by nature in each individual; and it began
in contemplation of law as soon as an infant was able to stir in its mother's
womb.[20]
He took his holding in part from Sir Edward Coke's Third Institute, published
in 1644, where Coke had observed that if an action were taken which resulted in
the killing of the foetus in the womb after
quickening, it was a "great misprision" (a misdemeanour)
but not murder. Presumably, the action against a woman prior to quickening,
even if an abortion or miscarriage occurred, was no crime at all.
The legal situation remained
like this for centuries. In
There was no change in law
until The Bourne Case,[21] when a
young girl (15 year old) was gang raped by a group of soldiers and became
pregnant. Dr Alec Bourne[22] agreed to
carry out an abortion for her and was subsequently prosecuted and acquitted.
After the ruling in Bourne case, some
women did have abortions for urgent medical reasons or, with the consent of a
psychiatrist, to protect their mental health but the issue of legalizing
certain abortions was highly intensified by the ‘thalidomide disaster’[23]
of 1962 resulted in almost 1,000 British women bearing babies with limbs
missing. Many of these women had been refused abortions; owing to this awful
situation present law The Abortion Act 1967 was enacted. In 1990, The Human Fertilization and Embryology Act
introduced controls over new techniques which had been developed to help
infertile couples and to monitor experiments on embryos. Despite attempts to
use this law to restrict abortion rights, the 1990 Act only lowered the legal
time limit from 28 to 24 weeks, which is the currently accepted point of
viability. It also clarified the circumstances under which abortion could be
obtained at a later stage.
At present, law does not legalise abortion, but allows exceptions to the illegality
of abortion, a pregnancy may be terminated provided the pregnancy is under 24
weeks[24] and the
life, Physical and mental health of the pregnant woman, any of her existing
children, or there is a high risk that the potential baby will be seriously
handicapped or malformed.[25] The Act
also provides that, in making this determination, "account may be taken of
the pregnant woman's actual or reasonably foreseeable environment."[26] In such a
case termination of pregnancy shall be performed in a notified hospital,[27] provided
two doctors are convinced that dissolution of such pregnancy is inevitable on
the grounds mentioned in the statute.[28]
It also permits a physician, without the concurrence of other, to abort a
pregnancy where he is of the good-faith opinion that the abortion is
immediately necessary to save the life or to prevent grave permanent injury to
the physical or mental health of the pregnant woman. Whether these abortions
should be carried out with or without the consent of pregnant lady, statute is
quite. Judicial determinations on the ‘self determination Right’ of the
pregnant women have been quite conflicting and unsettled,[29]
House of Lords in Re S (adult: refusal of medical treatment)
[30] took the
extraordinary step of granting a declaration authorising
doctors to perform a forced caesarean operation even though the woman had
expressly refused intervention for religious reasons. Sir Stephen Brown
accepted medical evidence that it was a life and death situation and the woman
and the foetus would die if the procedure was not
performed. The child was born dead. The brief judgment contains no convincing
legal principle and suggests that the appeal decision in the Angela Carder case[31]
was misconstrued, nevertheless, in St. George's Healthcare N.H.S. Trust v S [32] the Court of Appeal found that a competent
adult woman was entitled to refuse a caesarean section even if her decision
would lead to the death of a 36 week old foetus.
Judge L.J. said:
“The autonomy of each
individual requires continuing protection, particularly when the motive for
interfering is as readily understandable, and indeed to many would appear
commendable and, a pregnancy does not diminish a woman's entitlement to decide
whether or not to undergo medical treatment. Her right is not reduced or
diminished merely because her decision to exercise her right may appear morally
repugnant.”
Similarly a statement issued by
the Department of Health Circular in 1999,[33]
is unequivocal that a competent woman is entitled to make a decision which will
lead to the death or serious handicap of a foetus,
even if that the choice is so outrageous in its defiance of logic or accepted
moral standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it.
These accounts seem to confirm
that a robust (rather forceful) concept of patient autonomy applies to pregnant
women. They indicate that the death of a foetus is
less important than protecting patient autonomy. If the law has established
that a woman's decision should be respected, even if it will cause the death of
a 36 week old foetus, is there some inconsistency
with the Abortion Act's requirement that a woman's reasons for terminating a
pregnancy of much shorter gestation must be judged by two medical
practitioners.
The upshot of the discussion is
to leave the law in a considerable state of confusion and we fail to find any
certain and settled principles on the issue of abortion in
Development in
Initially, Pakistan followed
the English pattern of abortion law[34]
but subsequently, in 1989, Supreme Court of Pakistan in the case of Federation of Pakistan versus Gul Hasan Khan [35] struck
down various provisions of Pakistan Penal Code inter alia
sections 312 to 316 (relating to abortion and miscarriage), being inconsistent
with the injunctions of Islam. These provisions were replaced by the present
law.[36] The
present modified legislation substituted the restrictive English law with more
liberal approach. Hitherto, it retains several features of the old English law.
It establishes two stages of pregnancy for punishment purposes[37] and
imposes the old penalty of English law for an abortion performed during the
earlier stage (Isqat-i-Haml),[38] but when it is administered without consent
of the pregnant woman then punishment is enhanced up to ten years.[39] However,
certain exceptions have been created in the present law; abortion in the
earlier stage of pregnancy is no longer a crime if it is carried out in “good
faith” to provide “necessary treatment” to the pregnant woman but the term
“necessary treatment” is nowhere defined in the statute and leads to confusion,
therefore the degree of liberalisation represented by
this change is not entirely clear and there is no judicial interpretation
available so far. Somehow, liberalisation provided in
the law practically gives discretion to the pregnant woman and her physician to
determine and decide what conditions are sufficient for the termination of
pregnancy. The notable point is that doctor’s opinion doesn’t seem to be
compulsory requirement of law but only advisory in its application, as opposed
to English law where statutory procedure is laid down for such determination
and two consultant doctors opinion is mandatory (at the first stage of
pregnancy).[40]
Second stage of pregnancy, (if
aborted is called Isqat-i-janin) is when the limbs
and organ of the foetus are formed then; termination
of pregnancy can only be carried out to save
the life of pregnant woman. However, at this stage, the consent of the
pregnant woman is not always necessary when it is performed in good faith.
[41] If such
abortion is not performed in good faith only
to protect the life of pregnant woman then it is severely punishable and
there is no difference whether it is caused by the lady herself or by someone
else.
Besides all the liberalisation,
it makes hard to conceive the situation where it would be appropriate or not to
administer an abortion. For these reasons, doctors often hesitate to perform
abortion even where it is necessary to save and protect the life of the
potential mother because the current law has grey areas that leave doctors
vulnerable to accusations, negative publicity and career damage, especially in
the case of late abortions. In this situation a woman with an “unwanted
pregnancy” is between hammer and anvil, as abortion performed by midwives and
other incompetent persons creates certain complications i.e. septic abortions,
those are a leading cause of maternal death.[42]
Many eventualities have either
not been covered by the present law or the law on these point is very much
obscure and ambiguous, for example when the pregnancy is outcome of rape,[43] incest,
or the potential child is deformed or disable,[44]
when there are more than two embryos and one of them needs to be destroyed for
the life and health of the other one.[45]
These all cases may be put on the analogy of therapeutic treatment, when the
imputation of a limb or organ is necessarily carried out in the “best interest
of the patient”, further may also be added to the above stated situation, as
the problem is much serious because it directly affects the public at large and
restricting abortion in these cases is denial of free exercise of
constitutionally guaranteed rights of life, liberty and human dignity.
Therefore, termination of these pregnancies must be allowed “in the best interest
of public” to protect the society from the effect of such atrocious
circumstances.
Islamic Views
For the purpose of clarity and proper
understanding of law a resort is to be made to the Injunction of Islam.[46]
Muslims regard abortion as wrong and haram (forbidden),
but many accept that it may be permitted in certain cases. The Islamic view on
abortion is based on the very high priority that the faith gives to the
sanctity of life. The Qur’an declares:
"Whosoever has spared the life of a soul,
it is as though he has spared the life of all people. Whosoever has killed a
soul, it is as though he has murdered all of mankind."[47]
Many other verses of the Holy Qur’an can also
be narrated, establishing the same view point;
“…take not life, which God
hath made sacred, except by way of justice and law: thus doth He command you,
that ye may learn wisdom.”[48]
"And do not kill the
soul which Allah has forbidden except by right. And whoever is killed unjustly,
We have given his heir authority but let him not exceed limits in [the matter
of] taking life. Indeed, he has been supported [by the law]."[49]
Besides
this, there are hundreds of sayings and traditions of Hadrat
Muhammad (SAW) explaining and implementing the same dictum.
However,
historically, various attitudes and opinions on abortion coexisted, with Hanafi scholars permitting abortion up to the date of ensoulment,[50]
allowing women to do so even without their husband’s permission.[51]
Most Maliki opinions prohibited abortion, but a
smaller number allowed it up to 40 days, while Hanbali
and Shafa`i jurists allowed abortion up until
differing dates, and Zaydi jurists permitted it
“unconditionally” until ensoulment.[52]
Muslim women and men resorted to various forms of birth control, including
abortion.[53]
Musallam
points out that some jurists strengthened their arguments supporting
withdrawal, for instance, by claiming that it was preferable to abortion, but
also that the arguments which supported contraception (and withdrawal) could
also strengthen those defending abortion.[54] It may
be concluded that Islamic law usually accords the foetus
rights equal to the mother’s after four months. This point in time (120 days)
is the crucial event for jurists, at which point the foetus
is “ensouled”[55] and
termination of pregnancy after this stage can only be allowed when it is the
only way to save the life of the pregnant lady, this permission is based on the
principle of the lesser of the two evils known in Islamic legal terminology as
the principle of al-ahamm wa
'l-muhimm (the more important and the less
important).[56]
Law
on the subject in other Islamic countries is also not addressing the needs of
the contemporary society. For example, the Iranian Penal Law describes various
stages of pregnancy for punishment purpose and
abortion is completely illegal except to carry it out for the
procurement of life of pregnant woman subject to highly restrictive procedure,[57]
but in 2005, Iranian legislative assembly approved a draft bill allowing
abortion in cases of foetal defects and certain other
ancillary situations However, the Council of Guardians, a 12 member clerical
body which must approve new legislation passed by the Parliament, rejected the
bill a month later.[58]
While,
In this grim situation, a leaf
or two may be taken from the Indian law
on the subject[60] where it
has also categorised pregnancy into two stages, states
unmistakably a definite period for the first stage that is a period of 12 weeks
and for the second stage it is more than twelve weeks but less than twenty
weeks. A pregnancy can only be terminated with the consent of pregnant woman,
or in case of minor and mentally ill person, with the consent of their
guardians[61] subject
to the approval of doctors.[62] In the first case (earlier than twelve
weeks), a pregnancy can be aborted if, “the continuance of the pregnancy would
involve a risk to the life of the pregnant woman or of grave injury to her
physical or mental health; or 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.”[63] At the
first stage, opinion of one doctor for such determination is enough but at the
second stage recommendation by the two medical officers of an authorised hospital is mandatory. Abortion carried out by unauthorised persons has been made punishable.[64]
Most importantly, the essential
term “grave injury” has been explained in the statute, for this
purpose two explanations have also been added to avoid any confusion;
“
Explanation II.-Where any pregnancy occurs as a result of failure
of any device or method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish caused by such unwanted
pregnancy may be presumed to constitute a grave injury to the mental health of
the pregnant woman.
(3) In
determining whether the continuance of a pregnancy would involve such risk of
injury to the health as is mentioned in sub-section (2), account may be taken
of the pregnant woman's actual or reasonably foreseeable environment.” [65]
Conclusion:
It may be safely concluded that
Pakistani law is more sophisticated and balanced than English and Indian law in
substance but poor in exposition, lacking explanatory and procedural mechanism.
The old restrictive approach of English law has been dropped after bringing the
law in conformity with the injunctions of Islam. The State intervention has
been restrained and powers to make decision regarding termination of pregnancy
at the earlier stage (Isqat-e-Hamal) have not been
vested with the doctor(s) but with the pregnant woman (although in a confused
and ambiguous way) and the opinion of
doctors in the circumstances appears to be advisory, not mandatory. Therefore,
at this stage the right of determination should expressly and more clear terms
be left with the pregnant woman and her family, who are in better position to
find out the best solution in the afore-mentioned traumatic circumstances.[66] However,
in the case of Isqat-i-Janin (that is after ensoulment)
the opinion of the doctors should be made mandatory and a comprehensive
procedure must be laid down to avoid certain threats which might breakout
either from the continuance of such (unwanted) pregnancy or by the unauthorised/illegal termination of the same. Further, in
the cases of minor, mentally ill and unmarried women, if one gets pregnant for
any reason (apart from application of criminal law--if it entails any
punishment) it must be kept ‘confidential’ between the family of the
‘patient/victim pregnant woman and the staff of an authorised
medical hospital, as it is being practised in UK and
India because disclosure of the same can create irresolvable problems for the
aggrieved family and society at large.
Moreover, the ambiguity in law regarding
stages of pregnancy should be clarified in definite terms of weeks or days on
the basis of available scientific research and it should be obligatory for
incumbent doctors of an authorised hospital to
perform an abortion when it is not opposed to law and the conditions compel the
same, to protect the life and health of the pregnant woman. Meanwhile, the acts
of medical officers done in good faith should be expressly protected. The term
“necessary treatment” needs to be redefined on the line of Indian term “grave
injury”. Whereas, the term “physical and mental health” also demands
sympathetic rehabilitation, it should include something like Indian
explanations to section 3.[67] Certain more grounds for the termination of
pregnancy should be provided to avoid confusion pertaining to the cases of
rape, incest, foetal defects, future of existing
child, and foreseeable environment of the potential child.
* M.A., D.L.L., LL.M.(Pb)., Advocate High
Court, Email: adv_qais@hotmail.com
[15] Hyams, R.
“Who Gets to Choose? Responses to foetal/Maternal
Conflict”, Murdoch University Electronic Journal of Law, Vol. 2 No.3, 1995; McLean, Sheila A M
and Petersen, Kerry, “Patient Status: The Foetus and
the Pregnant Woman” [1996] Australian Journal of Human Rights
Vol.6; see further, Roe v. Wade, 1973; In re Guardianship of J.D.S.
(Florida) 2003; Doe v. Bolton, 1973; H. L. v. Matheson, 1981; City of Akron v.
Akron Center for Reproductive Health, 1983;Webster v. Reproductive Health
Services, 1989; Hodgson v. Minnesota, 1990; Planned Parenthood v. Casey, 1992;
Bray v. Alexandria Women's Health Clinic, 1993; Stenberg v. Carhart,
2000; McCorvey v. Hill, 2004; Ayotte
v. Planned Parenthood of New England, 2006. See also infra nn.30,31,and 32 infra.
[16] Curran, William J. “An Historical Perspective on the Law
of Personality and Status with Special Regard to the Human Fetus and the Rights
of Women ” The Milbank Memorial Fund
Quarterly. Health and Society, Vol. 61, No. 1, Special Issue: The Problem
of Personhood: Biomedical, Social, Legal, and Policy Views (Winter, 1983), pp.
58-75 at p. 58.
[17] Digest of Roman Laws, 35.2.9.1
[18] Digest, 1.5.7; 50.16.231.
[19] Bracton took the position that
abortion by blow or poison was homicide ‘if the foetus
is already formed or quickened, especially if it is quickened,’ (Bracton, On the Laws
and Customs of England, S. Thorne ed. 1968, p. 341). More surprisingly,
many emryologist of present modern age agree with him,for example; Keith
L. Moore and T.V.N. Persaud say, “Human development begins at
fertilization.... This highly specialized, totipotent
cell marked the beginning of each of us as a unique individual.” (The Developing Human: Clinically
Oriented Embryology, 6th ed.Philadelphia:W.B. Saunders
Company, 1998, p. 34). Bruce M. Carlson veiws, “Almost all higher
animals start their lives from a single cell, the fertilized ovum (zygote)....
The time of fertilization represents the starting point in the life history, or
ontogeny, of the individual.”(Human
Embryology &Developmental Biology, St. Louis, MO:
Mosby, 1999, p.3):
Ronan O’Rahilly and Faiola Muller opine, “Although life is a continuous process,
fertilization is a critical landmark because, under ordinary circumstances, a
new, genetically distinct human organism is thereby formed.... The embryo now
exists as a genetic unity.” (Human
Embryology & Teratology, 3rd ed. New York: Wiley-Liss, 2001,
p. 31). William,
J. Larsen, says, “... Fertilization takes place in the oviduct [not the
uterus]... resulting in the formation of a zygote containing a single diploid
nucleus. Embryonic development is considered to begin at this point.[...]These
pronuclei fuse with each other to produce the single, diploid, 2N nucleus of
the fertilized zygote. This moment of zygote formation may be taken as the
beginning or zero time point of embryonic development.” (Human Embryology, New York: Churchill Livingstone, 1997, p.1 and
17). See also n.52. infra.
[20] Blackstone's Commentaries on the Laws of England (various editions, first
published in 1765–1769 in four volumes), Book I, Section 252.
[21] [1939] 1 K. B. 687 =3 All E. R. 615
(1938).
[23]See, Harris ,Steven B. “The Right Lesson To Learn From Thalidomide”, 1992
http://w3.aces.uiuc.edu:8001/Liberty/Tales/Thalidomide.Html
Retrieved
[26] Ibid. S.1(2)
[28] Ibid.
[29] For example, Paton v Trustees of BPAS and Paton, (1978), C and another v S and another
known as the 'C v S' case.1987) and see,infra
nn.30,32 infra.
[30]
[1992] 4 All ER 67
[31] It is a highly controvercial
leading case of United Sates, [ Angela Carder was dying of cancer and 26
weeks pregant. She agreed to undergo treatment with
the expectation of surviving an extra two weeks to maximise
the chances of her foetus's survival, but not if it
would impose an undue burden on her. After consultation with her husband and
family, however, she finally sought aggressive treatment to assist with the
pain in the knowledge that this was likely to harm the foetus.
Even though the foetus was unlikely to survive and
against the wishes of Angela Carder and her family, a court order was granted
for an emergency caesarian section. The infant survived for a couple of hours
and Angela Carder died a few days later. The appellate court disapproved of the
forced intervention.
[32] [1998] 3 W.L.R. 936
[33] Department of Health circulars HSC 1999/093 and HSC 1999/156
[35] PLD 1989 SC 633
[36]
[46]
[47] Al-Qur’an,
[48] Ibid.
6:151
[49] Ibid. 17:33
[50] Miller,
Ruth A. “Politicizing reproduction in comparative perspective: Ottoman,
Turkish, and French approaches to abortion law”, HAWWA Vol.5 n.1, 2007, pp 73-89
[55]Al-Qur’an,
(Allah says), ‘We created man from an essence of clay: then placed him, a
living germ, In a secure enclosure. The germ We made a leech; and the leech a
lump of Flesh; and this We fashioned into bones, then clothed the bones with
flesh; Then We develop it into another creation.’ (23: 12-14) and the Hadith of the Holy prophet as narrated by
Abdullah: ‘Allah's Apostle, the true and truly inspired said, "(as regards
your creation), every one of you is collected in the womb of his mother for the
first forty days, and then he becomes a clot for another forty days, and then a
piece of flesh for another forty days. Then Allah sends an angel to write four
words: He writes his deeds, time of his death, means of his livelihood, and
whether he will be wretched or blessed (in religion). Then the soul is breathed
into his body..." (Sahih Bukhari,
Vol. 4:55:549) and see also supra n. 19.
[56] Rizvi, Sayyid Muhammad, “Marriage and Morals in Islam. Chapter 4:
contraceptives and Abortion”. Islamic Education and
[61] The Medical Termination Act 1971,
S.3 (4)
[62] Ibid. S.1
[63] Ibid. S. 3
[64] Ibid. S. 5 (2)
[65] Ibid. S. 3
[66] See,supra
n. 43-45
[67] See supra n.65