Abstract
The purpose of this article is to re-examine concepts of and reflect on the moral standing of pre-natal life, and consequently, on the moral legitimacy of TOP on demand.
The South African Act 92 of 1996 allows free, or relatively free access to TOP up to 20 weeks gestational age, and, albeit in unusual circumstances, beyond. There is an inherent tension between the moral underpinnings of Act 92 and deeply held intuitions on the value of human life in general, and related thereto, on pre-natal life. The question that arises is whether this law effectively negates all concepts of ante-natal moral significance. How should responsible agents reconcile these apparent contradictions?
I re-examine and contextualise arguments that have traditionally been used to argue, on the one hand for, and on the other against, TOP. Arguments in favour – pro-choice arguments – promote the general notion that reproductive issues are personal to the woman in question and since it takes place within her body, she must bear responsibility for the consequences of her decision, for the pregnancy and for a child that may be born. Her right to autonomy is an extension of her inviolable right to bodily autonomy, both generally and in matters medical. A relatively new rephrasing of this argument is to focus on reproductive justice, moving away from justification of choice to terminate. In this concept, TOP is always an issue of moral import, but only for the woman. TOP is one of three choices every woman has when becoming pregnant. The other two are to have the child, and to rear the child – which implies significantly greater moral responsibilities than TOP, and of much longer duration. The woman’s rights to reproductive autonomy have traditionally been denied by a hegemonic, male dominated, patriarchal and patronising system of decision making and control, extant in many ways and in many societies and jurisdictions.
Contrary to the rights-based pro-choice stand, pro-life arguments centre around the unquestionable humanity of the embryo and foetus, the continuity of its development, and its potential to develop in a continuum from conception to eventual birth. The undeniable moral significance of post-natal human life is then, as it were, retro-actively extended to pre-natal life. These arguments are linked to religious concepts. Limitations to these arguments are evaluated. I argue that neither of these concepts provides a sufficient moral basis to guarantee a right to life. Cut-off points – markers of intra-uterine development beyond which TOP becomes morally unjustifiable – are detailed. I argue that they are of little value in the present debate, other than indicating normal development.
From the above it follows that the foundations of these two approaches are divergent: a rights-based legal approach versus a predominantly religious approach. These contradictions are impossible to reconcile – the resulting standoff has thus been called “eternally contested”, meaning not that we should agree to disagree, but should maintain the debate in the light of societal evolution.
I discuss some aspects of this evolution in the South African context, against which context TOP decisions are made. I point out that in South Africa, most pregnancies are unplanned and probably not affordable. I discuss the enormous social dilemma of teenage pregnancy, and its consequences on the lives of women and on society. The social structure and views on reproduction have drastically changed. Staff working in TOP clinics are often abused and vilified and have been physically assaulted.
Even though my aim with this article is to focus on the question posed in the title, I recognise that TOP decisions are made within a particular context. In this regard, I provide evidence to illustrate that the negative consequences of refusing access to TOP for a woman who requests it overshadow potential harms of granting her request.
I support a gradualist view on the moral significance of ante-natal life. Because of its humanity and potentiality, human pre-embryos/embryos/foetuses – conceptually, the same developing beings – are morally significant. However, to accord them absolute moral value, that is, a right to continued existence, flies against the realities of intra-uterine development, the importance of contingent potentiality (conditions external to the intra-uterine being), and the authenticities of the human condition. Since circumstances increasingly favour further development as the embryo/foetus grows and actuates its inherent genetic potential, so, too, does its moral significance increase. The threshold for absolute moral significance is crossed when the foetus attains separation survivability. Although TOP beyond this point – arguably, at about 24 to 26 weeks gestational duration – is usually morally indefensible, unusual circumstances may necessitate late TOP. This is in line with the provisions of Act 92 and the Roe v Wade (1973) judgement which divided pregnancy into three trimesters. The reversal of Roe v Wade reverts the authority to legislate on TOP to individual American states. State legislation limiting access to TOP has been or is likely to be enacted in half of these jurisdictions.
A possible theoretical framework to adjudicate on the moral legitimacy of TOP is by means of a “moral hearing” or “moral balance sheet”: the presentation of contextual arguments based on contingent potentiality, against intrinsic potentiality.
I finally conclude that its humanity and potential accord increasing moral status to a human foetus. The threshold for a right to continued existence is reached at separation survivability, although TOP may in unusual circumstances be morally justifiable beyond this point.
My response to the question posed in the title and introduction is that the legalisation of TOP on demand does not imply that ante-natal life has no moral significance. I contend that its moral significance does not necessarily justify a right to continued existence. The realities of the imperfect human condition oblige us to consider varied aspects of this existence in the judgement of the moral legitimacy of TOP to reach a balanced endpoint, perhaps with some residual discomfort, often characteristic of the resolution of moral dilemmas.
Keywords: abortion; affordability; eternally contested; gradualism; humanity; pro-choice; pro-life; reproduction; reproductive justice; Roe v Wade; sentientism; survivability; youth pregnancy
- The featured image by Peter Schmidt of the article was obtained from Pixabay.